September 03, 2007

Increasing numbers of Employment Tribunal claims - UK

The Tribunals Service annual report shows that the Employment Tribunals' workload in 2006-07 was around 137,000 cases compared to 127,000 in 2005-06. This represents an annual increase of nearly 8%

Possible reasons for the increase

A widely held view is that the statutory dispute resolution procedures introduced in 2004 are at fault. The EEF, an industry body for engineering and manufacturing employers, puts it down to, "parties becoming more familiar with the rules" and "pre-application procedures not having the desired effect of cutting down claim numbers".

Many commentators have taken the view that, owing to both the vagueness of the procedures themselves, and the complexity of the regulations governing when they will or will not apply, the legislation makes it more, not less likely that a dispute may escalate to a tribunal hearing.

This is something that has been recognised by Government and in December 2006, it launched a root and branch review of Government support for resolving disputes in the workplace. It appointed Michael Gibbons, a member of the Ministerial Challenge Panel, to review the options for simplifying and improving all aspects of employment dispute resolution.

The Gibbons Review called for a radical overhaul of the current approach to resolving workplace disputes including repealing the statutory dispute resolution procedures. The Department for Business, Enterprise and Regulatory Reform (formerly the DTI) has stated that it is committed to piloting any new approach to dispute resolution and the recommendations made in the Gibbons Review are now the subject of a consultation paper. We, through the Employment Lawyers' Association, have given feedback on our experience of how the procedures have operated in practice.

One area, which in our experience is causing an increasing number of claims, is related to bullying and harassment.

Bullying and harassment

ACAS describe these terms as interchangeable with many definitions including bullying as a form of harassment. Further, they state that:

* harassment, in general terms is, unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient; and

* bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying does not include legitimate and constructive criticism of a worker's performance or behaviour or reasonable requests made of workers.

Clearly, everyone should be treated with dignity and respect at work, but why do employers need to take action on bullying and harassment? Not only are they unacceptable on moral grounds but, may create, poor morale and employee relations, loss of respect for managers and supervisors, lead to poor performance and productivity, high absence and damage to company reputation.

Bullying and harassment can result in tribunal and other court cases against the company with the potential for payment of unlimited compensation. It is, therefore, in every employer's interests to promote a safe, healthy and fair environment in which people can work.

It is not possible to make a direct complaint to an employment tribunal about bullying. However, employees might be able to bring complaints under laws covering discrimination and harassment on one or more of the following grounds:

* sex;
* race;
* disability;
* sexual orientation;
* religion or belief; and
* age.

Handling bullying and harassment

ACAS outline the following 5 step guide for dealing with bullying and harassment in the workplace:

1. develop and implement a formal policy;
2. set a good example;
3. maintain fair procedures for dealing promptly with complaints from employees;
4. set standards of behaviour; and
5. let employees know that complaints of bullying and/or harassment, or information from staff relating to such complaints, will be dealt with fairly and confidentially and sensitively.

It is important that any complaints raised or information received about bullying and/or harassment are taken seriously and investigated promptly. Whilst ACAS suggest that some complaints may be dealt with informally, employers need to be wary of giving out the wrong message about how seriously the complaint is being taken if this approach is taken.

Depending on the outcome of the investigations into the bullying/harassment complaint, it may be that the use of counselling will help. Counselling can be particularly useful where the investigation shows no cause for disciplinary action, or where doubt is cast on the validity of the complaint. Counselling may resolve the issue or help support the person accused as well as the complainant.

However, the employer may decide that the matter is a disciplinary issue that needs to be dealt with at the appropriate level of the organisation's disciplinary procedure. As with any disciplinary problem it is important to follow a fair procedure. In the case of a complaint of bullying or harassment there must be fairness to both the complainant and the person accused.

There may be cases where somebody makes an unfounded allegation of bullying and/or harassment for malicious reasons. These cases should also be investigated and dealt with fairly and objectively under the disciplinary procedure.

In cases which appear to involve serious misconduct, and there is reason to separate the parties, a short period of suspension with pay of the alleged bully/ harasser may need to be considered while the case is being investigated. If then, the employer is contemplating dismissing an employee, the statutory procedures must be followed.


Whilst the number of claims being handled by the employment tribunals is on the increase, the underlying reasons for this are by no means certain. However, our experience shows that issues of bullying and harassment in the workplace are one area that is on the increase.

The ACAS 5 point plan is a useful guide for employers to ensure that they have the necessary policies and systems in place for handling complaints of bullying and harassment.

The problem of course with the ACAS 5 point plan is that managers do not set a good example, they do not always maintain fair procedures for dealing promptly with complaints, they do not set standards of behaviour, and complaints are not always dealt with fairly, confidentially and sensitively.

In the context of higher education, self-policing and self-regulation have simply failed. Could this be one more reason why the victims/targets have no faith in the selective application of statutory dispute resolution procedures, and resort to Employment Tribunals? What exactly is a victim/target meant to do?

Do we have any statistics breaking it down to different industries and professions, on how many Employment Tribunals could have been avoided if the statutory dispute resolution procedures were followed properly? Who is the biggest offender? Now that would be an eye-opener!

We want to know what onus - and if necesary compulsion - the Gibbons Review will place on employers to resolve disputes in a fair and transparent process.

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