Are claimants jeopardising employment tribunal awards?
by David Carter on 20 April 2011
We have found that the new Fast Track process for High Court enforcement of employment tribunal and Acas awards has bedded in now. The enforcement of cases through this process is very likely to grow significantly over the coming months, particularly given the rising number of accepted claims.
As there is no abortive fee and no minimum award value, the financial risk to claimants is very low. However, without the abortive fee, the potential risk to HCEOs is of concern if claimants take enforcement action without doing all they can to improve their chances of successful enforcement.
A growing problem
In 2009-10, the number of employment tribunals accepted rose by 56% over the previous year to 236,100. The size of the award naturally varies from case to case, but the 2009-10 statistics show that the average award in unfair dismissal cases was £9,120.
The economic climate will almost certainly be a contributory factor to the 56% jump in the number of cases; but research by Ambition shows that poor understanding of the employment tribunal process is another. Their survey of over 200 HR professionals revealed that 15% had no understanding of the process, and only 5% fully understand it.
Prompt action
If a claim is for unfair dismissal, breach of contract or working conditions (three common reasons), the underlying reason for the employer’s actions may be financial uncertainty. The claimant should take enforcement action as soon as they conclude that the defendant is not going to pay the award.
If they leave it, they may well find that, by the time they do instruct an HCEO, the company in either insolvent or on the brink as has few, if any, assets, plus many other creditors baying at their heels. Or, even more annoyingly, they are setting up a phoenix company and will have transferred all assets to the new business.
Getting the detail right
We are finding that several employment tribunal awards we have attempted to enforce have failed because the claimant sued the wrong entity. It should be the full company name on the contract of employment. Even simple checks with Companies House can prevent this issue.
This is frustrating for all (apart from the defendant!) and is so easily avoidable. We have a checklist of all the details the claimant must check before commencing action, so as not to jeopardise their chances of getting paid.
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Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
