- July 16, 2019
- Posted by: Jenna Jack
- Category: People Plus
Last week we hosted our Mock Employment Tribunal in Birmingham in partnership with Vista Employer Services. The aim of the day was to showcase what would really happen in an employment tribunal and to give fellow professionals a clear picture of how proceedings would go, how best to prepare and what factors could and would affect a judiciary decision; so that employers could be better prepared if they were ever called to a tribunal of their own.
The day began with our mock attorneys presenting the facts of the case. This case involved a 51-year-old woman who had brought her line manager to an employment tribunal on the basis that she had experienced discrimination in the workplace due to her age. Participants were also given some background on Vista’s experience of real tribunals and told that in a lot of cases the defense attorney would have no prior knowledge of the case until the day of the hearing; giving little time for preparation.
- For employers this means it is vital to arrive at the tribunal prepared, with a clear structure of your arguments and the key points you wish to make.
To give a true representation of the preparation period, our audience was split into three groups – the judiciary, the claimant (the individual who felt they had suffered a grievance) and the respondent (the employer). Each team sat and discussed how they were going to approach the case. For the claimant, this involved questions around what evidence would be best to put forward, such as inflammatory emails made by the respondent could really strengthen the claimant’s case as this is documented evidence rather than hearsay.
On the respondent’s side of the room, the discussions were largely around language and how they could question the claimant’s interpretation of what was said, compared to the intention with which it was said. For example, one of the allegations of ageism stemmed from a comment from the respondent where he had stated ‘I’m glad I’m not the only one who has senior moments.’ The claimant claimed that this remark was directly linked to her age, whereas the respondent claimed that this remark was directly linked to memory and was only intended as a comment on his own recollection.
- Whichever side you agree with, proving the intention one way or another is a difficult task; even for an experienced HR professional.
In the judiciary corner, they were told by staff from Vista that it was vital when deciding a case that they should only consider the facts of the case and what could be proven. They were also told some of the legal changes that have happened in relation to employment law, such as until 2017 claimants had to pay a large fee to bring a case to tribunal, and it was argued that this was a barrier to justice for claimants at the time. However, since the fees have reduced there has been an increase in smaller scale cases being taken to tribunal. It was also noted that this case could have been resolved in the workplace if both sides had followed a procedure and involved HR sooner.
When we reconvened, we heard each of the arguments that the claimant and respondent teams had prepared. Both sides came under questioning and the feeling in the room was mixed between what the outcome would be. Questions were asked of Vista staff such as ‘Does not escalating the situation affect both the respondent and the claimant in the same way?’ and ‘How can you truly prove intent?’. After each side had made their case and answered questions from the judiciary and the attorneys; it was decision time.
We were warned about the perils of making assumptions about employees, and how these preconceived ideas can be used against you. We heard how the respondent could have used better language to address the claimant; rather than nominating her for tasks seemingly due to her age.
- He could have asked for volunteers for the same task or made his reasons for picking the claimant clearer and without parallel to a protected characteristic such as age.
The verdict received by the judiciary was that two of the three allegations made by the claimant were upheld; meaning that she would receive some form of compensation or resolution from her employer.
If this was your employment tribunal, do you think the result would have been the same? What would you have done differently and what can you do to make sure you are prepared, should you ever need to be; for your own tribunal?
- If you’d like advice or guidance on this, please do get in touch by email Talent@peopleplus.co.uk
“Very insightful. Having been to tribunals before, they’ve never been positioned like this. This was far better for the fact that we’re de-briefing and learning about the law that underpins a tribunal such as this. Really engaging.” Samantha Arnold – HR Professional for Communisis.