How to win employment tribunal cases in the hotels and leisure industry

Posted: 25/07/2014

To 'win' a tribunal claim can mean different things for different employers depending on the nature of the claim, its merits and any other commercial pressures such a claim might bring to a business. The best 'win' an employer in the hospitality field can expect is a total withdrawal of a claim; the next best victory is a tribunal judgment against the employee with an award of costs. The reality however is that costs are rarely awarded in full, if at all, so employers may be left with a pyrrhic victory.

There is also the issue of commercial settlements, which in themselves may be a form of 'win' for the employer, particularly when the legal costs of defending the claim far exceed what the employee is suing for or where proceeding to a hearing would be damaging for a hotel or restaurant’s reputation.

Against these considerations, hotels and leisure sector specialists Sally Nesbitt and Bill Smith share their top 10 tips on how to win tribunal cases.

• Avoid litigation if you can – always comply with legal requirement and process; if you do need to exit an employee quickly, consider using without prejudice negotiations or 'pre-termination meetings' to explore a negotiated departure and a settlement agreement. Acas early conciliation is also a final chance to resolve a dispute before it escalates into litigation.
• Work with your lawyers – ET3 and Grounds of Resistance are legal pleadings and should always be side checked by your lawyers as it is often more expensive and time consuming to amend these at the tribunal; late amendments can also undermine the employer’s credibility.
• Disclosure and privilege – identify and preserve relevant evidence when you can, especially if you have employees who are leaving the business; beware of internal emails as such footprints are disclosable; use legal professional privilege to protect what can potentially be damaging information.
• Mitigation – always collate evidence of jobs in the hospitality press from the date of termination as the employee has to show that they have mitigated their loss. This can help to reduce your overall financial exposure and can be a useful tool in settlement negotiations. Allocate this task to a specific person within your team to make sure that the information is being gathered regularly.
• Witnesses and statements – identify your key witnesses early on as they need to prove your defence; when preparing witness statements, use headings, keep to facts and deal with the issues. Some tribunals have started to introduce a word/page count! Don’t repeat what is already set out in documents and make sure that your witness evidence covers all of the issues which the tribunal needs to address.
• Tribunal bundle – nothing will irritate the tribunal more than a poorly assembled tribunal bundle. Unless the employee is legally represented, maintain control over the bundle and keep irrelevant documents out, if only to save costs. Remember, a tribunal will not sit and read every page of a bundle; you can only be certain of them reading those pages referred to within witness statements. Avoid duplication of documents, especially where email chains are concerned, and make sure all documents are legible.
• Prepare the witnesses for trial – witnesses need to be sure they know their statements, and any documents referred to in them, inside out.  They will be  cross-examined on these. Witness coaching is not legal but witness preparation before the hearing is allowed. Your lawyers can give the witnesses valuable tips on what to wear and how to behave in the witness box. Clarifications are allowed but never answer a question with a question to provoke. Impressions are everything in the tribunal!
• Keep the tribunal on your side – the tribunal panel are humans and the more you help them, the more they will reciprocate. It’s useful to have a cast list and an agreed list of issues to help the panel navigate through the case. Always appear reasonable and keep body language neutral throughout the hearing.
• Tips on getting costs orders – although costs are rarely awarded, you are more likely to get some costs at the end of the hearing if you can show that the employee was behaving unreasonably in taking the case all the way to the hearing. Use without prejudice offers ('calderbank offers') to your best advantage where appropriate.
• Use specialists to fight your case – when settling a case, it is important to ensure that it is made without admission of liability and that confidentiality is maintained. Most cases are settled upon withdrawal of the claim by the employee so as a matter of public record, there is no publication of the amount of compensation other than the fact that it was settled. If you win a case and the employee appeals, it is important to ensure that you have experienced legal advisers to defend you at the Employment Appeal Tribunal.

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