How to Lose your Tribunal Case – in 10 easy steps

Alarmingly, the number of employment tribunal claims exceeded 115,000 in 2005/06

Statistically, it may appear difficult for the unwary employer to lose an Employment Tribunal case. Only 14% of employers actually lose at the hearing. However, this ignores the fact that two thirds of unfair dismissal claims are settled before the hearing. It also ignores the amount of work which is involved in preparing for and attending employment tribunal hearings.

It does seem that many employers remain keen to lose their case. If you fit into this category and want to lose your case, you’ll want to do it right from the beginning! Here’s how – in 10 easy steps:

Step 1

Just do half a job at the Investigation stage of your disciplinary case:

• Don’t interview important witnesses

When preparing your case, don’t mention those people who would say something that would support your employee’s case

• Put words into people’s mouths

Write out the statements for your witnesses and just get them to sign your documents

• Be accusatory

Don’t have an open mind – show everyone how quickly you can make your mind up.

• Don’t check relevant documentation

At the investigation stage, the real trick is to show you’ve already pre-judged matters and don’t want to be bothered with detail.

Step 2

The 2004 Dispute Resolution Regulations sets out the omissions that will make a dismissal automatically unfair so:

• Don’t send a stage 1 letter to your employee outlining the allegations
• Don’t hold a meeting with the employee – why bother, when you know what the outcome is going to be?!
• Don’t offer an opportunity for your employee to appeal against your decision.

These 3 steps will almost certainly guarantee an automatic unfair dismissal – and they have become increasingly popular since 2004.

Step 3

May be you’d like to try something a bit more subtle. It could be that you have good grounds for dismissal, possibly on grounds of redundancy, or may be capability – but you’d like to lose your case anyway

• Don’t give the affected employee(s) a list of job vacancies that exist in the Company.
• Assume the employee will not be interested

It’s best not to discuss opportunities with your employee(s), it’s important that it’s your assumption – not a fact

• Don’t check your employees’ CVs or initial applications forms

It works best if you don’t know whether your employee has skills that could be effectively utilised in another part or the organisation

• When you’re in Tribunal, simply assert “I had no alternative”

Step 4

If you decide to ignore Steps 1 to 3 above, there’s still time to lose your case:

• Don’t give any detail to your employee as to why you’ve decided to dismiss
• Ignore the employee’s explanation during the internal hearing (and don’t refer to it in your letter to the employee
• Just rely on the old “mutual trust and confidence” justification for dismissal

This is particularly useful if you can’t find a suitable reason for dismissal

Step 5

It’s a bit of a problem if you have a good HR Advisor or a Manager who can handle the process well for you, but it’s still not too late:

• Let a subordinate handle the appeal for you

Will he really overturn the decision of his boss?

• Introduce new allegations at the Appeal Stage

Better still; don’t mention them until your decision letter

If you’ve made mistakes during the initial hearing stage:

• Don’t have a complete re-hearing at the Appeal stage
• Make the same mistakes all over again

Step 6

For the really determined employer, there’s still plenty of scope to be sure you lose your case:

• Don’t submit your ET3 (Response Notice) to the Tribunal Office in time

Ignore the 28 day deadline for submission

• Submit your ET3 to the wrong Tribunal Office

Simply assume it’s your local office

• Don’t use the mandatory form to submit your response

Simply send in your own letter to the Tribunal

• Ask for a review of the case by the Chair without giving any reasons

It will bounce back and you’ll be well on your way to losing!

Step 7

If instructing a lawyer or HR Advisor, you can actually get them to help you lose by asking them questions at the hearing – in all innocence! In preparing for the hearing with your advisor:

• Exaggerate the strong points of your case
• Omit to mention the weak parts of the case

If you’re really desperate:

• Tell blatant lies to your advisors – they’ll only come out at the hearing!

Step 8

If by some miracle, you’ve not lost by this stage, there’s still time, prior to the hearing:

• Don’t read the Employment Tribunal documentation or do any preparation
• Conveniently lose the documentation – either before, or preferably during the hearing
• Don’t comply with the orders/instructions issued by the Tribunal Chair in advance of the hearing
• Don’t tell (at least a couple of) key witnesses about the date of the hearing

Step 9

You may need something even more subtle at the hearing. Whatever reason you’ve given your employee for dismissal, give the Tribunal a different one:

• Manufacture a redundancy

(After all, you don’t want to have to go through all the tiresome processes of improvement)

At the hearing be sure to mention all the issues of poor performance, time keeping, etc – It puts a fog over the reason for dismissal

There are now 6 potentially fair reasons for dismissal (including retirement)

• Argue as many reasons as possible at the hearing
• Deflect attention away from the real reason

Step 10

If all else fails, behave scandalously at the hearing itself:

• Insult the Tribunal Panel (swear if you want!)
• Threaten the claimant
• Accuse the Tribunal of bias
• Doctor the evidence (particularly effective part way through the case!)
• Seek costs/preparation time order

There we are – a simple 10 point plan to lose your Tribunal case. It’s guaranteed to work – believe it or not, the steps have been tried and tested by many employers. If you try really hard, you could even end up paying the maximum compensation of £58,400.

On the other hand, if you want to avoid this potentially major penalty and win your tribunal case; or, better still, avoid the tribunal claim in the first place, seek professional advice BEFORE you take any action.

 

 

If you would like support or advice on grievance or disciplinary issues, or on any employment and business issues, contact GB Management Solutions on: (01740) 623 455

How to Lose Your Employment Tribunal Case - in 10 easy steps

A light hearted look at the pit falls encountered by employers which lead to successful unfair dismissal claims

By Geoff Brown