For pretty much all of my career, and certainly my days as an HR generalist, the big bad wolf has been being taken to an Employment Tribunal. I often console fretting managers even now that “if I had a pound for every time I’ve been threatened with a Tribunal, I wouldn’t need to work”. This is of course a complete exaggeration – unless I find somewhere on earth I can live out my days on a dozen or so quid. But the principle stands: in times of difficulty in employment relations, it is the employee’s final card to play.
Has it been a powerful deterrent? On an anecdotal level, yes – for junior HR pros I have worked with at least, the possibility of an ET1 landing on the desk has them running for the metaphorical hills. I’ll certainly never forget the first time one arrived with my name on. However, we all know that the Tribunal system was creaking; struggling in many ways to deliver on the initial ideal of quick, non-legalistic resolution of employment disputes. As employment law has become ever more complicated and unwieldy, so employers have deployed more and more avoidance tactics and employment lawyers have dreamed up more strategies to keep their clients out of court.
Having said that, read a handful of case summaries (they’re easily available online and many actually make for genuinely interesting reading!). For every employer who has bent over backwards to be fair and reasonable yet may have fallen foul of a specific requirement of a particular piece of legislation, there are plenty of unscrupulous employers who have flown in the face of employment law as well as common sense and general decency. As scared as some of the junior HR folk I’ve worked with have been of the system, it didn’t actually appear to be much of a deterrent.
In a previous blog I encouraged you to imagine a scenario in which there was no employment law in the UK. That is, being honest, quite unlikely ever to come to pass. But are we heading into an employment law landscape where Tribunals have lost their teeth? The oft-quoted reduction in Tribunal cases by 79% since the introduction of fees could be interpreted as suggesting we are. It certainly adds a new dimension to the age old dance that takes place when an employee or ex-employee thinks they have a case to bring.
The new ACAS early conciliation process too will have an impact, although it’s too soon to tell precisely how much of one. It will be interesting to see what mindset Claimants and Respondents enter the process with: my initial experience is that, as ever, the ACAS conciliators are pretty fair and genuinely focused on bringing claims to a conciliated conclusion wherever possible. I’m guessing – and there are many who are better placed to guess than me – that it won’t make a huge difference to anyone who believes they have the strongest scene against their employer. However from an employer’s perspective, the process has the potential to weed out those who are just doing it for nuisance value and can be talked down by a frank conversation with a conciliator.
With recent anecdotal tales of Employment Judges being under used and people visiting Tribunals to discover there are no listed cases that day, it does make me wonder whether – for the time being at least – the big, bad wolf has run out of puff.