16th June 2009 | Posted in Legal updates, Opinion
After 14 months of wrangling, we took a case to the Tribunal a few weeks back, only to have it settle at the court-room door. We won, but rather than celebration at this end there was only mild depression at the waste of time, emotion, private money and public funds involved. With Tribunal claims continuing to rise Mike Berry, Deputy Editor at Personnel Today, asked us what we would do to fix this nonsense, so here are some thoughts:
Raise the barriers to entry on litigation
Although Daleside V Mathew is welcome, it is rare and there is precious little to discourage an Application right now. This has the zero sum effect of encouraging organisations towards a commercial settlement which is simply unjust. The system implies that organisations are wealthy bullies and individuals powerless victims, but it is too often the other way around.
Beef up the Tribunals
ACAS report that the last recession saw claims jump by 57% in the first year and this one looks similar. Delays do no-one any favours – three months from issue to hearing is a good target.
Differentiate between small firms and big ones on legal expectations
59% of businesses in the UK are small-medium sized and they characteristically have little or no HR presence to guide them through the maze of legislation covering the workplace. Yet they are subject to the same expectations as government organisations and global businesses who can ‘lawyer up’ to any challenge. The availability of no-win, no-fee lawyers and access to funding for claims through domestic insurance cover for individuals isn’t wrong but it does create an imbalance in the system. With the employer facing an estimated £21,000 of cost in defending a claim the time has come to give small employers more of a chance.
Invest in mediation
Although the provisions in the 2008 Employment Act don’t go far enough, there is an opportunity for enlightened employers to save some time and money through mediation and other ER benefits may well flow from a careful implementation of a mediation policy. There is a cost case to be made and smart employers are grabbing the chance for something better.
Litigation will always be a last resort but at the moment, the playing field is tilted too far in the Applicant’s favour and it needs evening up.
