Do Employment Claims Always Go to Tribunal?
When you bring a claim to the Employment Tribunal one of your biggest concerns is likely to be the Tribunal Hearing itself. Will your claim go to Tribunal? How fast will it happen? Will you have time to prepare properly? There are a lot of genuine concerns to have when you bring a claim. Unfortunately, there are also a lot of myths out there that can muddy the waters and cause confusion and further stress. This article debunks the top three most common myths about the Tribunal hearing.
One of the most popular myths regarding Tribunal claims is that your claim will definitely go to Tribunal: that once you send off your Claim Form that’s it, there’s no way to avoid going to Tribunal.
This is simply not true.
While you should only bring a claim when you are confident that you understand the very real possibility that you may end up at a Tribunal Hearing, there is no guarantee that you will have ‘your day in Court.' The majority of claims settle long before the actual Tribunal Hearing.
The Majority of Claims Settle Long Before the Actual Tribunal Hearing
There are a variety of reasons that your claim could settle outside of the Tribunal, and if you find yourself in a position to settle for a reasonable settlement, then you should strongly consider doing so. If you go to a Tribunal hearing there is no guarantee that you will win, you have as much chance of going to Tribunal and losing as you do of winning. Going to Tribunal is a big risk, and there are consequences to taking such a risk. If you lose, you could be exposed to the Respondent’s costs.
Settling before going to Tribunal is actively encouraged by the Tribunal service and ACAS (who offer a free conciliation service). If you can find legal representation, they will actively look for opportunities to settle your claim to avoid the risk of going to Tribunal and walking away with nothing. Your solicitors will work hard to negotiate a suitable compensation settlement for you.
Settling Your Claim
If you are bringing the claim yourself, you should consider your best-case and worst-case scenarios if you went to Tribunal today and try to encourage and discuss settlement with the Respondents with this in mind. Consider the risks of going to Tribunal when you discuss settlement and try to understand that settling before going to Tribunal is a negotiation. You are unlikely to achieve your best-case scenario if you opt for settlement but by negotiating you lose the risk of walking away with nothing (except perhaps a bill).
BONUS MYTH: "Never Accept the First Offer"
This myth applies to all kinds of claims and is a personal pet peeve of mine. While it is not unheard of for the first offer to not be accepted, the first offer is not an arbitrary figure.
If you are making the first offer, you should do so with the genuine desire to settle your claim. You should truthfully assess your losses and make a reasonable offer based on putting yourself back in the position you would be in had the negligence not occurred.
If you have received the first offer, then the offer should not be dismissed out of hand. You should carefully consider it, as the figure is unlikely to have been plucked from thin air, it will have been carefully calculated. If you cannot see how the figure has been calculated then tell the Respondent this; ask them to explain to you how they reached the figure they have. When they come back to you assess their points carefully and outline to them any discrepancies. This could potentially make them reevaluate their position and make you a more suitable offer, or it could be an opportunity for you to make a further offer.
When to Settle
There are numerous opportunities to settle a claim before going to the Tribunal hearing, and these opportunities will be easier to identify once you have sent your claim form to the Tribunal. After sending your claim form, the Tribunal will provide you with a timetable of when certain documents are to be completed and exchanged. Once you have this timetable, you will be able to review it and spot the points in your claim when you might be able to open up negotiations.
For example, there will come a time when you have to exchange witness statements. This means you should complete your witness statement and any supporting statements and send them to the Respondent by a certain date. The Respondent will also complete their statements and send them to you by this day. So, you will provide the Respondent with a great deal of information about your claim and what you feel happened and in particular why the Respondent is at fault, while at the same time receive a great deal of information regarding the Respondent’s point of view. You will see their argument laid out in black and white. You will also see how much support they have from their witnesses. This should also bring to light any points of concern you have for your case (although you should already be aware of these by this point as you should have considered your case well before starting a claim). You will see how strong the Respondent’s arguments are and how strong yours are in comparison. This will give you a reasonable idea of how likely the Respondents are to settle the claim and how much power you can bring to the negotiation.
The timetable provided by the Tribunal will also set a date for the hearing or a window of time when the hearing is likely to take place, and you may receive a more specific date later.
Even once you have a date set for your Hearing, it is possible to settle the claim. Claims can settle on the day of the hearing or even halfway through the hearing. However, if your claim goes to Tribunal hearing and you are nervous, you should do your utmost to keep a cool head if the Respondents decide now is the time they want to discuss settlements. Do not let them take advantage of you because you are under stress, and always take the time to consider the settlement package on offer.
You should now have a better understanding of why the “claim will always go to tribunal” myth is just that. A myth. There are numerous opportunities to settle a claim before going to Tribunal. You should also have an understanding of just what you should be considering when you look to settle your claim. You need to consider the reasonableness of the offer, as well as what you could hope to achieve at Tribunal and weigh it against the risk of going to Tribunal and walking away with nothing.