· Features

How HR can survive the tribunal jungle


Employment tribunals invoke trepidation throughout the HR profession due to the sometimes unpredictable outcome of the judgment, where employers would often settle a case to bypass the costly nature and ambiguity of defending cases, even when the claims are unfounded. We examined how employers can use tribunal outcome data, so that they can prevent and prepare best to defend a claim.

It can be difficult to predict the outcome of an employment tribunal, so it’s important to understand how to maximise your chances of success.

What’s new

Modern employment tribunals are an integral aspect to resolving workplace disputes. In the last 50 years we’ve witnessed an increase in accepted claims, from 8,592 cases in 1971 to 117,926 in 2020/21.

The rise in claims can be aligned to employment law being formalised from the ideologies of natural justice into a rigid framework that employers have to adhere to. This has resulted in natural justice being supplanted into employment legislation.

Now, the action of the employer in dealing with the employee is measured just as highly, if not more so, than the actual actions or non-actions of the employee.

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The threat of a tribunal has resulted in employers not being able to act ‘instinctively,’ but forcing them to follow set procedures to the detriment of both parties.

The majority of workplace disputes that tribunals have presided over have remained the same over the last 50 years, although they have changed to reflect the civil courts in the UK due to pressure from the government and judges who stem from the same legal background.


Key findings

Previous tribunal research has focused predominantly on the number of claims, without focusing on how different regions attract more claims than others and how claimants have a greater chance of winning a case depending on where the claim was heard, as well as the area of law having a higher chance of success.

Therefore, through analysing historical changes to the employment tribunal system, we identified various factors that affected a tribunal claim including the jurisdiction and the geographical location of where the claim was heard.

Having established that the outcomes of tribunal claims are significantly associated with region and claim, we conducted further analysis of the data in order to combine this in a single model.

This provided estimates of their effects, enabling better interpretations and predictions. A suitable model was to compare ‘outcome’ against ‘region’ and ‘claim.’

The analysis of the data reveals that London has the least chance of success for a claimant, with the North East being the region with the greatest chance of success; where the odds of a successful claim for this region are 52% greater than the corresponding odds for London.

Redundancy had the greatest chance of success for the claimant, whereas discrimination suffered from the least chance of success with successful claims for redundancy almost 11 times greater than the corresponding odds for discrimination.

From research to reality

So how can HR professionals utilise tribunal claim data? The reasons behind why outcomes differ by region and type of claim are difficult to precisely define.

The general rule of law holds that legal cases depend solely on laws and facts, with judges applying legal reasons to the facts of the case in a coherent, logical and deliberate manner.

However, it has been noted that the law is rooted more in experience rather than logic, and that political as well as social factors influence judgements.

Derisory comments that justice is ‘what the judge ate for breakfast’ must be viewed cautiously as there are a multitude of different factors that can influence a judicial decision, outside the simple facts of the case.

These include self-experiences of political preferences, esteem and concern for reputation, beliefs about the role that may constrain their attitude, emotional and psychological factors, and the general rule of exercising discretion.

A clear alignment as to why redundancy claims had a higher chance of success for the claimant may be associated with the serious nature of someone losing their job, as well as the stringent process employers have to follow when making staff redundant.

"Employers should exercise more caution dealing with redundancy claims"

The unintended consequence of these processes is that they can be interpreted differently, which leaves employers unaware of their duties until a ruling has been made, such as in the case of Sefton BC v Wainwright (2014).

Employers therefore need to be more cautious in dealing with these types of claims, due to a tribunal’s likelihood of supporting someone who has been made redundant or having to interpret the law which can be quite unpredictable.

Pay and contract claims, which also had high success rates for claimants, are usually claims which are of low value in compensatory terms as employers are more willing to fight against them, therefore taking more of a risk with the claim going to a full hearing. HR professionals have used these low-value claims to assert their stance that claims will be fought and not just settled on a cost basis, even if they know they may lose the case.

The regional variations in success rates are interesting, with London and the rest of the South East area having small chances of success. The South East does have a distinctive economic make up in comparison to the rest of the UK and therefore could have a different approach to tribunals.

There may also be a divergent way of interpreting the specifics of a case, due to regions having different industrial backgrounds and workplace cultures that tribunals should take into consideration when resolving disputes. The propensity for using legal teams in different areas could also have an effect on whether cases are won or lost.

Understanding that redundancy claims have a higher chance of success could result in organisations ensuring they have a more rigorous redundancy process in place or avoid compulsory redundancies at all costs. Similarly, those organisations operating in the London regions are now aware of claims having a lesser chance of being successful and therefore could operate in a more instinctive manner rather than ‘following the legal process.’

The final conclusion drawn from the research involves judges sitting alone, presiding over cases without the support of lay members, who are typically HR professionals, experienced business owners or trade union representatives. Historically they have provided a real-world perspective into the tribunal hearing, being able to frame what is and is not acceptable in the workplace.

They can also fetter uncompromising judges, who rely solely on the law for arriving at a conclusion, so that a reasonable and well-balanced consideration of the dispute can be undertaken.

As lay members are utilised in more complex cases, such as redundancy, it is important to be aware of how influential they can be on a tribunal decision, as they will have practical experience of dealing with these issues which could influence how they apply the law in favour of the claimant.

Looking at the research, HR professionals should train managers more around the specific types of tribunal claims being submitted or indeed put added emphasis in avoiding types of claims that are submitted in their region.

Previously, organisations would rely on policies and procedures to prevent claims, but this has not put off employees, who do not have to pay for the privilege of using the employment tribunal system. Therefore, understanding the nature of tribunal claims could influence how organisations approach their HR procedures so that they can possibly prevent, as well as prepare, for a tribunal claim.

Jonathan Lord is a doctor and senior lecturer in HRM and employment law at University of Salford Business School.


The full piece of the above appears in the March/April 2023 print issue. Subscribe today to have all our latest articles delivered right to your desk.