That didn't go so well...
Employers who have acrimoniously parted company with an employee will often seek advice from their HR consultants or solicitors on their exposure to employment tribunal claims. The ideal of course would be to take advice at an earlier stage and try to avoid the acrimonious split in the first place, but in a case where "what's done is done", the employer still has options.
Watch and wait
Before the summer of 2013, there were no fees payable by an individual wanting to take their ex-employer to an employment tribunal. They would fill in their claim form and, provided it was submitted within the 3 month time limit, the employer would have to defend the claim.
These days, all claims filed must be accompanied by an issue fee, and the statistics show that employment tribunal claims have dropped by between 70-90% depending on the type of claim.
With that in mind, a piece of advice we often give is, let's wait and see. Before the claim can be submitted to an employment tribunal, the individual must contact Acas to see if conciliation is at least possible (this is known as compulsory Early Conciliation). The employer has a chance to avoid the tribunal claim if a settlement can be reached. Whether this will happen will depend very much on the circumstances. If the employer has done everything right, they may not wish to throw money at an aggrieved ex-employee, but instead defend themselves subsequently in the employment tribunal.
Sort it out and move on
Conversely, an employer who knows that they have not done everything quite right may be keen to ensure that they do not spend the next few months waiting to see if they will receive a claim. They know or suspect they would lose that claim and are keen to minimise the cost and demands on management resource that will inevitably involve.
In many cases, on seeking advice, they may be advised to make an offer to their ex-employee under a settlement agreement. This advice is perfectly valid as such a document will, if drafted and completed correctly, prevent tribunal proceedings from being brought at all. This type of agreement should be drawn up with professional advice and the individual must be independently advised by a lawyer or other qualified person. All of this comes at a cost to the employer.
What many don't realise is that there is a less costly, but nevertheless equally effective, alternative. The Acas Early Conciliation service, which is compulsory for individuals wishing to bring a claim (as outlined above), may also be instigated by employers on an entirely voluntary basis. An employer who fears a claim and who wishes to make a genuine offer of settlement of potential proceedings, may contact Acas who will conciliate in order to help the parties reach an agreement. In this case, the individual is not required to seek independent legal advice unless they choose to do so, and Acas will prepare the binding paperwork which prevents an employment tribunal claim from subsequently being brought. The services of Acas are completely free.
The employer may choose to seek advice on the level and structure of a settlement offer, but this is in many cases unnecessary. Conciliation through Acas is a practical and cost effective option for employers which does not require professional input, unlike the settlement agreement route.
For more hints and tips from our experienced directors, why not download our employment law ebook? If you require advice on a specific set of circumstances, please use the contact form to the right of the page.