Yesterday saw the government propose slight changes to the Employment Tribunal service in the UK with the introduction of a £250 fee to lodge a case, refundable if you win but not if you lose.  Heralded by Chancellor George Osborne as,

“….ending the one way bet against small businesses”

There is some sense in the intention behind the proposals.   Throughout my career I’ve seen a number of employees and ex-employees lodge Tribunal claims when there was little if any merit in them.  In some cases, there was simply two “views” of the events that took place and in these cases I would find it hard to see any way in which you could eradicate the proceedings.  If an employee feels aggrieved then they feel aggrieved, a £250 fee will hardly change their behaviour and the rights and wrongs of the events need to be assessed by an independent third-party. ACAS have often played a valuable part in these proceeding in the past.

On the other hand, however, a number of complaints that I have seen in the past that can only be described as vexatious. It brings to mind the conversation that was had with a “legal advisor” to an employee who during a disciplinary investigation had gone onto long-term sick leave.  The advisor approached us in a very aggressive manner and said that they had a case for unfair dismissal and that we would need to settle RIGHT NOW.  This of course led us to point out (calmly) that,

1. There hadn’t been a dismissal
2. As we hadn’t concluded the investigation, we couldn’t know whether it would lead to dismissal, and
3. Even if it did, unless he was Mystic Meg it would be hard to tell whether that dismissal was unfair (given points 1 and 2 above)

But we’re experienced HR professionals and new a line when we saw one.  But, for me, this highlights a bigger area that needs to be tackled if we are going to get a sensible even-handed approach to employment relations: shoddy legal practice and shady employment lawyers.  The individual in this case was working for a charitable organisation that received Lottery funding in order to operate, the website at the time boasted about how much money he had made for various clients (some of which I’m sure were deserved).

As a company, in such circumstances you’re left with a choice.  If the individual proceeds then you need to engage lawyers or spend a lot of time working on the case yourself.  This incurs either direct cost or indirect through time, cost and time that many organisations just don’t need to incur.  So the natural inclination in many cases is to get the cheque book out and settle. Job done.  Everyone is a winner…..almost.

If the Government really wants to tackle the problem of vexatious claims then it needs to tackle the legal advisors that pursue them.  They are the people who can change and challenge the compensation culture, but of course it is a really hard thing to tackle.  People have the right to legal support and whilst there are many reputable legal advisors out there, how do you sort the wheat from the chaff? The bullying, threatening, inappropriate behaviour of a few, who know that the chance of winning is slim, but know that if they push employers enough, it becomes financially impractical to defend.

The whole thing is a bit of a mess, there are far too many Tribunal cases taking place and far too many claims being made that never reach Tribunal because the cases have been settled beforehand.  Nothing, sadly, is going to change soon and these proposals won’t make much of a difference. What is really needed is a review of the whole tribunal system and the way in which employees are represented.  Until that time, just expect £250 to be added to the demands for settlement.

Business will bear the cost. Again.