There is a lot of talk at the moment about ‘seismic shifts’ in employment law. First there was the introduction of tribunal fees last summer heralding a drastic reduction in claims, for ordinary claims (as opposed to multiple claims) reducing them by over 60%. That will be followed by the introduction in a few days time of early conciliation which will be compulsory from May so that anyone wanting to bring a claim in the vast majority of cases will have to at least consider whether to try and discuss the issues with a view to perhaps resolving the matter before taking the step of lodging proceedings.
For the traditional employment litigator, perhaps someone who has thrived on the ‘battle’ of the adversarial approach, these shifts will feel uncomfortable and it will be tempting to suggest that employers should wait and see if the Claimant will ‘put their money where their mouth is’ and pursue a claim further. However, anyone who has ever been through any litigation will know that there are rarely winners – even if the employer is successful they may have spent considerable sums to achieve that, put managers through the stress of appearing in a court environment including being cross-examined, distracted managers for many hours from their usual work and damaged long-term relationships with the Claimant who is unlikely to ever say anything positive about the employer again. If the employer loses, not only do they face the cost of a tribunal award, reimbursing rhe claimant their issue fee and the payment of their own lawyer’s legal fees. Under changes coming into force shortly a financial penalty can also apply – the tribunal can award of up to £5,000 which is reduced by 50% if the employer pays it swiftly. It remains the case that the successful party is unlikely to be reimbursed the money they have spent on the litigation process – tribunals still only award costs in a fraction of cases, where the other party has conducted themselves unreasonably.
All these factors mean it is worth at least talking to ACAS and finding out what the Claimant wants. If they are unrealistic and think their case is worth a million, battling on may be appropriate. However, if the Claimant is sensible, at least exploring what the issues are will be important. A decent lawyer may need to put in some more work at the outset than we would have done a year ago, to truly assess the value of the claims and the likelihood of success, but that time spent upfront will be well spent and could avoid significant tribunal costs later on. You need to be prepared to spend some time during the early conciliation process, speaking to potential witnesses and assessing the likely issues that would emerge in a tribunal and discussing them. You may well have more of a chance to weigh all the factors in the balance before a claim is issued – it could be an opportunity that is too good to miss.