Golf clubs and employment tribunals

In its latest article offering legal advice to golf clubs, the National Golf Clubs’ Advisory Association (NGCAA) explains how to handle matters correctly in order to avoid or reduce their exposure in potential claims.

With the number of Employment Tribunal claims on the rise, it is important for golf clubs to handle matters correctly with their employees in order to avoid or reduce their exposure in potential claims.

With that in mind, this article explores what might happen if things go wrong and a club receives a claim from an employee, explaining the outline procedure and the potential compensation that might be awarded.

In the Employment Tribunal, the person bringing the claim is known as the ‘Claimant’ and the person defending the claim is known as the ‘Respondent’.

Starting the claim

In order to start a claim, the claimant must present the claim on an ET1 form, which can be submitted online, by post or hand delivered to certain Employment Tribunal offices. Claims must be lodged within the relevant time limit, for example an unfair dismissal claim must be brought within three months of the termination date and most discrimination claims must be presented within three months of the date of the discriminatory act.

In most cases, an Employment Tribunal claim will only be accepted if the claimant has firstly followed the ACAS early conciliation procedure, which lasts for up to one month. The purpose of it is for ACAS to conciliate and to reach a settlement between the parties, so as to avoid the case proceeding to a full Employment Tribunal hearing. Any cases settled would normally end there. In circumstances where no settlement is reached, a certificate is issued by ACAS to say conciliation was unsuccessful, which the claimant must present to the Employment Tribunal, along with their ET1 form. In practical terms, therefore, the first indication that respondents will have about a potential claim will be that contact from ACAS.

Provided that the Employment Tribunal accepts the claim, it will send a copy of that claim to the respondent, together with a blank ET3 form for completion and return. The respondent should set out their defence to the claim on the ET3 form and must submit it within 28 days of the date on which the tribunal sent out the ET1 form.

Preparing for the case

Assuming that the case proceeds, an employment judge will review the case to set out certain matters for case management. This will normally take the form of a timetable for the disclosure of documents, any requests for further information, preparation of the ‘Schedule of Loss’ by the claimant, the production and exchange of witness statements and a date for the agreed bundle of documents to which the parties will refer as evidence in the main hearing. This underlines the importance of contemporaneous record keeping and a paper trail when dealing with employees, since it could form part of the club’s evidence at a tribunal to help defend a claim.

There is no requirement for either party to be legally represented during a tribunal case, so the preparation for, and conduct of, the hearing could be conducted by the club itself. Whilst the Employment Tribunal system was originally designed for the parties to represent themselves in a less formal environment, the law is increasingly more complex and so it may be sensible to engage representation. Some clubs will have insurance against claims, who may appoint legal representatives for the club. It is sensible to contact insurers as soon as a claim is intimated, but some insurers will require a club to have consulted with them about the handling of the dismissal procedure much earlier, so it is likely that insurers may well be on board in advance of receipt of a claim.

The hearing

At the hearing itself, the case can be heard by an employment judge sitting alone or by a panel of three people, made up an employment judge and two wing members (one drawn from an employee background, such as trade unions, and the other from an employer background, such as the CBI).

Witness evidence is heard and each party argues their own case. Witnesses are normally required to give evidence on oath and the representatives for the parties will have an opportunity to ask questions of those witnesses. The Employment Tribunal may have its own questions as well, and at the end of the hearing each party makes its closing submissions to summarise their case with reference to the legal principles and the evidence.

When the Employment Tribunal reaches a decision it can be given immediately or it can be reserved, which means that it is issued in writing to the parties at a later date.

If the claim is successful, the Employment Tribunal will go on to consider what compensation (if any) they should award. This may be done the same day or the parties may have to return at a later date for a remedies hearing.

Remedies

The compensation in unfair dismissal claim consists of two aspects. The first is the basic award and the second is the compensatory award.

The basic award is up to a maximum of £15,750 (in the financial year of April 6, 2019 to April 5, 2020) and is calculated in the same way as a statutory redundancy payment, based upon an employee’s age and length of service with one week’s pay capped at £525 until April 5, 2020. Sometimes the basic award can be reduced where the employee’s conduct before the dismissal justifies it or where the employee has already received a redundancy payment from the employer.

The compensatory award is what the Employment Tribunal considers just and equitable in all of the circumstances. It can include immediate loss of earnings, future loss of earnings, loss of pension and benefits and expenses incurred. In most cases the compensatory award is subject to a maximum of the lower of 52 weeks of gross pay at the time of dismissal or £86,444 (for the year April 6, 2019 to April 5, 2020). Compensation can be reduced in circumstances where there was an error in the dismissal procedure but the claimant would have been dismissed in any event, where the claimant’s conduct contributed to the dismissal or where the claimant has not taken reasonable steps to find alternative employment.

If an Employment Tribunal upholds a complaint of unfair dismissal, it can make an order for reinstatement or re-engagement. They cannot, however, order reinstatement or re-engagement and also make a compensatory award. In practice, though, orders for reinstatement or re-engagement are extremely rare.

Compensation for discrimination is based on the loss suffered by the claimant. Importantly, there is no upper limit on compensation and the aim of it is to award a sum of money that will put a claimant in a position that they would have been in had the wrong not taken place. The compensation can cover financial loss (as above in unfair dismissal cases such as loss of earnings) and non-financial losses, which in most cases will include an injury to feelings award which can range, at present, from £900 to £44,000 (or potentially beyond in exceptional circumstances) depending on the severity of the discrimination. In some cases it can also include an award for personal injury, aggravated damages and exemplary damages.

Finally, where a discrimination claim is successful, an Employment Tribunal may make recommendations and declarations such as recommending that within a certain period of time, the employer should take specified steps to reduce the adverse effect upon the complainant.

Appeals

Either party can appeal an Employment Tribunal decision to the Employment Appeal Tribunal on a point of law. They cannot, however, appeal simply on the ground that they are unhappy with the outcome. The notice of appeal must be lodged within 42 days of the date of the decision of the Employment Tribunal or if it is a judgement, within 42 days of the date on which the written judgement was sent to the parties.

Employment tribunal proceedings can be complex matters and it is important for clubs to understand the consequences of failing to deal with their employees properly and in a legally correct manner. For advice in relation to employment law matters, please contact Alistair Smith at the NGCAA on alistair@ngcaa.co.uk or 01886 812943

The National Golf Clubs’ Advisory Association (NGCAA)

The Media Centre, Emirates Riverside,

Chester-le-Street, County Durham, DH3 3QR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk