“Preparation is prevention”: Derby legal expert on avoiding the employee tribunal trap

James Johnson, a partner at Derby law firm Smith Partnership and expert in employment law, urges employers to act before problems escalate to litigation.

“Claims are currently being backlisted until the end of 2026, and even some in 2027,” he explains. “We’ve not really seen things improve – one of the reasons was COVID-19, but we are also seeing complications with actually recruiting qualified employment judges to sit in on hearings.”

The impact of the backlog on employers

Tribunal delays have introduced challenges not just for claimants and respondents but also for legal professionals like Johnson.

“It’s very difficult to prepare cases because you are attempting to prepare for something that probably won’t be seen for two years,” he says. “This affects collecting evidence as people’s recollections of things change over time, while documents and physical evidence are being lost.

“Secondly, I think it impacts the advice we actually give to our clients, in relation to both individuals and employers.

Effectively if we advise them to go down a certain route, they can end up in tribunal litigation and then they have it hanging over their heads for the next two years.

“So often we’re advising more proactive action to ensure they’re not ending up in these tribunal proceedings.”

Five proactive steps to prevent employment tribunal claims

Johnson outlines five key strategies that can drastically reduce the likelihood of a tribunal case arising:

1. Establish clear procedures from the outset

“I think firstly, having certain procedures in place from the outset greatly reduces the risk of tribunal claims,” Johnson advises. “Things like anti-bullying and EDI procedures can prevent claims from coming through.”

“They also give defences a basis when these claims are brought through, and give employers internal routes through these matters which are clear and concise with both the business and the individual.”

2. Train employees and managers effectively

“Secondly, I would recommend implementing training to both employees and managers, and I think induction processes are really important and extremely prevalent when the Day 1 Unfair Dismissal Rights come in.

“Make sure that employees from day one know what correct behaviours need to be followed, what the employers’ values and standards are, but also how to deal with disputes.”

“Also make sure that managers are trained and given the necessary tools to ensure they can nip internal situations in the bud, for example, performance, lateness or behavioural issues, which they can resolve without going through the employment tribunal system.”

3. Use well-drafted employment contracts

“Thirdly, going back to the point about documentation, having a well-drafted employment contract will work wonders in terms of making sure disputes don’t arise.

“We often find that many disputes arise through claims relating to missing or inadequate contracts of employment.”

A strong contract, he says, “makes sure both parties know exactly where the employee stands and what their entitlements are.”

4. Build trust through communication

“Next would be building a relationship based on trust with employees,” Johnson advises. “Through good communication, ensuring employees feel heard and respected and that they’re being treated honestly and fairly, works wonders when ensuring situations are dealt with internally and effectively.”

5. Maintain thorough and accurate documentation

“Finally, we see a number of cases where we find an employee says ‘we always had concerns about this individual’, but when you ask for the supporting documentation to show these claims were there they can’t find any.”

“Either they’ve not tackled the issue or documented the data, so having clear documentation on an employee’s personnel file, including any formal action, informal counselling or welfare, appraisals or conduct files, all help reduce the chances of claims being brought to you by employees.”

Avoiding litigation after disputes arise

When prevention isn’t possible, Johnson urges early, strategic resolution.

“One of the key areas when trying to prevent employee litigation is protected conversations, off-the-record conversations with the employee whereby they’ve been offered the opportunity to leave the organisation and wave claims that they may have.

“We have a system called Acas Conciliation. These will hold confidential discussions with the employee and employer to see if a resolution can be reached through a binding settlement before the claim is issued to the tribunal.

“Acas can provide the same service all the way up to when the claims are eventually brought to a tribunal.

“A judge will basically look at the case and will try to assist the parties in reaching the terms of a settlement to avoid lengthy hearings.”

Final advice

Johnson’s final recommendation is to consider settlements before the case reaches its most resource-intensive stage.

“In my experience, all claims come from a point of principle, so both parties can be quite set in their ways and they don’t feel as though they’ve done anything wrong,” he reflects.

“Employers should consider at really early stages out-of-court settlements. They save a considerable amount of time and cost.”

“Often what we’re finding is that once the case gets fully prepared, that’s when the cases are settling. So businesses should be looking at these out-of-court settlements to save themselves resources and time.”

Smith Partnership is a leading UK law firm offering clear, practical legal advice to individuals and businesses. With offices across the region, they provide expert help in areas like family law, personal injury, and business services.

Visit their website to find out more: https://smithpartnership.co.uk/