Five Reasons Why Employers Lose in an Employment Tribunal in England

If a dispute arises between you and your employee, you could face proceedings in an employment tribunal. An employment tribunal is a court that specialises in employment law. If a dispute arises, such as an alleged unfair dismissal, an employment judge will look at the case to determine an outcome to the dispute, such as compensating your employee. While the outcome of the dispute will depend on the facts, there are other factors you should consider. This article explains five reasons why employers may lose in employment tribunals. 

1. Not Abiding by Employment Law

One of the most straightforward ways an employer can lose a dispute in an employment tribunal is if they have clearly breached their obligations under employment law. Where an employer’s breach is clear to a judge, you would expect them to decide in favour of the employee. For example, you may have:

• directly discriminated against your employee and your employee has good evidence to support their claim;
• breached express terms of your employee’s employment contract; or
• failed to pay your employee the National Minimum Wage.

For this reason, you should ensure you are fully aware of your employer’s obligations under the law. If you act consistently with these obligations, you can ultimately avoid a dispute arising in the first place.

2. Lost or Destroyed Evidence

In an employment tribunal, you must gather evidence to support your argument. Ensuring you include the correct documents can be a win or lose factor. For this reason, you must have all the relevant information on hand. 

However, lost or destroyed evidence is why businesses can lose in employment tribunals. Employers can encounter this problem where, for example, their information systems in place automatically delete emails after a specific period. This could affect your ability to argue your case successfully. 

Furthermore, if a judge believes you have purposely lost or destroyed evidence, they will be less likely to believe your side of the story. This could affect the final outcome of the case in the employment tribunal.

3. Problems With Witnesses in the Employment Tribunal

Witnesses can be vital to presenting your case at an employment tribunal and potentially help you to win it. However, problems with your witnesses are a reason that employers lose employment tribunals. For example, your witness may be: 

• poorly prepared;
• nervous; 
• straying from making the relevant point; or
• unclear when answering questions.

If these problems arise, your witnesses can appear unhelpful and not believable. By preparing witnesses for the hearing, you can ensure that you do not experience problems when facing an employment tribunal.

4. Lack of Care From Those Involved 

When preparing your case for an employment tribunal, you will likely need your staff to cooperate with you. A common reason why employers lose their case is that those involved do not care for their case. This may be because they do not have time to help or you have not set clear instructions for the case preparation.

For these reasons, you should try to ensure that those involved care for your case by:

• stressing the importance of the case for the business; and
• helping free up some of your staff’s standard working time to task them with helping you on the employment tribunal case.

5. Making a Bad Impression in the Employment Tribunal

Often when an employment dispute reaches a full hearing at an employment tribunal, it signals that both parties have the potential to win the case. Therefore, every factor counts towards being the party that wins the case. Judges are only human, so it is possible that making a bad impression of you and your business can influence the final outcome. Therefore, to ensure that you give an excellent impression to the judge, you can:

• avoid arguing a point that is not convincing;
• hold your hand up to mistakes that are apparent but not essential for your case; and
• try to be reasonable with your employee rather than argumentative.

Key Takeaways

Various factors can affect the final outcome of a dispute in the employment tribunal. However, to avoid losing a case in the employment tribunal, you should:

• ensure your conduct is consistent with employment law;
• get the appropriate help to prepare your case;
• have available evidence ready;
• ensure your witnesses understand the nature of the proceedings; and 
• make a good impression by being cooperative rather than argumentative. 

If you need help preparing for a dispute in the employment tribunal in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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