Employment Tribunals Aren’t Won In The Courtroom. They’re Won – Or Lost - Long Before The Hearing
One of our clients recently succeeded in defending an Employment Tribunal claim, with every claim against them being dismissed.
For obvious reasons, we cannot identify the employer, the employee or the specific circumstances of the case. However, there is an important lesson that every employer can take from it.
Employment Tribunals are won long before the hearing.
In our experience, employers don’t usually lose Tribunal cases because of what happens in the courtroom. They lose them because mistakes were made months, or even years, beforehand.
In fact, in this particular case, almost two years passed between the events leading to the claim and the Tribunal hearing itself.
That means decisions made today may not be scrutinised by an Employment Tribunal until years later. By then, memories fade, managers move on and circumstances change. What remains are the letters, meeting notes, Occupational Health reports and records showing whether the employer acted fairly, reasonably and consistently.
It All Started with Good Process
In this case, the employer experienced a genuine downturn in work and began a redundancy consultation process. The employee was placed at risk of redundancy and a fair consultation process commenced.
The employer consulted with those affected, identified an appropriate selection pool, applied objective selection criteria and carried out a fair scoring exercise.
Before the process concluded, trading conditions improved and, as a result, no redundancies were made.
Some time later, the employee went off sick and remained absent for a prolonged period.
The employer did not rush to a decision. Instead, they followed a careful and measured process over many months. Occupational Health advice was obtained, medical information was requested and the employer sought to understand the employee's health, likely prognosis and whether a return to work was realistic within a reasonable timeframe.
The employer also considered the impact of the continuing absence on the business, explored whether there were any reasonable alternatives to dismissal and kept the situation under regular review.
Eventually, after around a year of absence and careful consideration, the employee was dismissed on the grounds of ill health capability.
The employee exercised their right of appeal. The appeal was carefully considered by a different manager.
The employee then raised a formal grievance. That grievance was investigated thoroughly and responded to appropriately. A further appeal followed and, once again, the employer ensured the process was fair, impartial and well documented.
The employee subsequently brought Employment Tribunal claims, including unfair dismissal and discrimination.
As is usually the case, the matter first went through ACAS Early Conciliation before eventually proceeding to an Employment Tribunal hearing, extending the process over almost two years.
The Tribunal dismissed every claim brought against the employer.
So, Why Did the Employer Succeed?
Many people assume that an Employment Tribunal is won or lost by the quality of the barrister representing the employer on the day. Whilst good legal representation is undoubtedly important, the reality is that the hearing itself is often the final chapter in a story that began months, or even years, earlier.
Employment Tribunals are not looking for perfect employers. In many cases, they are considering whether the employer acted reasonably in all the circumstances and followed a fair process.
- Did the employer follow a fair procedure?
- Was appropriate consultation carried out?
- Was relevant medical evidence obtained before decisions were made?
- Were alternative options properly considered?
- Was the employee given opportunities to have their say?
- Were appeals heard fairly?
- Can the employer demonstrate why each decision was made?
In this case, the answer to those questions was 'yes'. That outcome did not happen by accident. It was the result of careful planning, sensible decision making and a commitment to following a fair and reasonable process at every stage.
Why HR Advice Matters
Almost two years later, routine-looking letters, meeting notes and records became key evidence before the Employment Tribunal. They demonstrated a fair process, careful consideration and reasonable decision making.
From the outset, we worked alongside our client, providing practical advice and guidance as each situation developed. We advised on the legal framework, the options available, the risks associated with different courses of action and the practical steps needed to ensure decisions were fair and well documented.
We prepared correspondence, advised on consultation, supported management meetings, recommended Occupational Health involvement, guided the capability process and helped ensure appeals and grievances were handled consistently and in line with employment law and good practice.
Importantly, we did not simply become involved when the Tribunal claim arrived. By that stage, the foundations had already been laid through months of careful advice and support. Because the employer had followed appropriate advice throughout, they were able to demonstrate that every significant decision had been properly considered, objectively reached and supported by evidence.
Documentation Is Evidence
One of the biggest misconceptions we encounter is that HR documentation is simply paperwork. In reality, every invitation letter, consultation note, meeting record, Occupational Health referral, outcome letter and appeal decision forms part of the employer's evidence.
Memories fade. Good documentation does not.
Why Smaller Businesses Should Take Advice Early
Many SMEs assume formal HR procedures are something only larger organisations need to worry about. In our experience, the opposite is often true.
Good HR advice cannot guarantee that an employee will never bring a claim. What it can do is help ensure that, if a claim is brought, the employer is in the strongest possible position to defend the decisions they have made.
Our Role
At Rely, our role is to help employers make decisions that are fair, reasonable, commercially sensible and legally defensible if they are ever challenged months or years later.
Throughout this case, we worked in partnership with our client, providing timely advice and practical guidance at every significant stage of the process; from redundancy consultation and long-term sickness management through to capability, appeals, grievance handling and ultimately the Employment Tribunal.
Every piece of advice we provided had one objective: to help our client make decisions that were lawful, reasonable and supported by evidence. As each stage unfolded, we helped the employer understand the legal risks, navigate the available options and take the course of action that was most likely to withstand legal scrutiny. When the Employment Tribunal finally heard the case almost two years later, that careful approach was fully vindicated. The evidence spoke for itself.
Could Your Processes Stand Up to Tribunal Scrutiny?
Hopefully, you'll never have to defend an Employment Tribunal claim. But if you did, would your paperwork tell the right story? Would your managers be able to explain why key decisions were made?
Seeking advice at an early stage is almost always easier, less stressful and more cost-effective than trying to deal with the consequences of a process that has gone wrong.
Before You Make Your Next Employment Decision...
If you're currently dealing with redundancy, long-term sickness absence, capability concerns, disciplinary action, grievances or another complex employee issue, don't wait until ACAS Early Conciliation or an Employment Tribunal claim lands on your desk.
Getting advice before you take action is almost always easier, less stressful and significantly more cost-effective than trying to put things right afterwards.
Free Employment Risk Review
We're offering employers a complimentary 30-minute Employment Risk Review.
During the call, we'll discuss your situation, identify any key employment law risks and talk through the practical options available to you before you take your next step.
There is no obligation and no hard sell; just practical, commercially focused HR advice from experienced professionals.
To arrange your free Employment Risk Review, call us on 07771 934631 or email hr@rely.company.
If there's one lesson to take from this case, it's this: good employment decisions are rarely judged on the day they’re made. They may be scrutinised months or even years later. The advice you take today before making a difficult employment decision could be the reason you successfully defend an Employment Tribunal claim two years from now.