How to Avoid Employment Tribunals: Some Considerations

There have been several recent high-profile stories in the media concerning large, well-established organisations that have had to defend themselves in employment tribunals against various allegations concerning the way they have treated staff.  Also, tribunal claims have been rising year-on-year with predictions that there will be hefty increases in the number of claimants of 40% or more over the next three years, at an approximate cost to individual businesses of £7,000.

So if large, well-resourced organisations can fall foul of, on the one hand, the increasing plethora of employment legislation, case law and codes of practice and on the other hand, employees who are becoming much more well-informed about their rights, better supported (no-win, no-fee lawyers) and sometimes desperate to hang on to employment in these difficult times – is there anything that businesses can do to avoid being taken to an employment tribunal by disaffected staff?

The trite answer is “Yes, just don’t recruit or employ anybody!”  However this advice is neither funny nor practicable.

So what else can be done?  Quite a lot is the reassuring response.

Most employers want to ‘do the right thing’ by their employees; they realise that looking after their workforce makes sound business (and ethical) sense.  Employees who know what is expected of them in the workplace, who are treated fairly and consistently and who feel they can discuss potential issues with management are less likely to become disgruntled and cause trouble, but more to the point, they are more likely to be better workers.  Therefore employers (and consequently employees too), will benefit considerably from having the basic elements for managing their ‘most valuable asset’ …

Get the fundamentals right

  • Ensure that your contracts of employment or written statements of your main employment terms have been issued to all employees within two months of them starting work; ensure that this document meets the statutory requirements as a minimum and it is accurate and consistently honoured.
  • Make sure all your policies and procedures are up-to-date; they should be regularly reviewed to take into account changes in the law (an example being the abolition of the default retirement age) and changes in the way your company works.
  • And ensure you have all policies and procedures that are needed – a social media policy and procedure is becoming vital with the rapid increase of the use of Facebook, Twitter and the like, even when employees access these out of working hours.
  • Develop a Staff Handbook, where all your company rules and regulations are set out – how to notify sickness absences, time-keeping requirements, health and safety topics, what gross misconduct ‘looks’ like.

Involve staff

  • Try and avoid confrontation in the first place.  Communicate and consult with staff regularly, especially when thinking about developing or reviewing policies and procedures; getting employees’ input early on will mean the procedures are more likely to be understood, accepted and therefore followed – and managers who have to deal with issues are more likely to feel knowledgeable and confident when it comes to implementing the procedures.
  • Train managers to understand their role and responsibility in managing their people in line with your policies and procedures – it protects the company.  Give them the confidence and ability to identify issues and deal with them in a timely, compliant and consistent manner – never for example, dismiss on the spot, however clear-cut a situation appears.

Document what you have done

  • It is vitally important that you can recall actions and conversations accurately, often some time after the event.  A paper trail that is capable of demonstrating what happened, when and the situation in which it occurred, will be critical to defending your position if it is ever challenged.  So keep dated notes of telephone calls, meetings and discussion minutes and letters sent and received.
  • Keep a record of the HR training given to all staff – including the information given out at induction about ‘how we do things round here’.

Do what you say

  • So many tribunal claims are lost because companies fail to follow their own internal procedures and/or fail to act consistently and/or fail to act reasonably.  Make certain your managers do not act first and seek advice later – train and support them to deal with the human elements of their work.

Deal with issues

  • Sometimes businesses say they have done all of the above, but there is an employee who appears determined to cause difficulties – or business changes have to be made.  This might mean disciplinaries, grievances, dismissals or redundancies.  What can be done to minimise the risk of being taken to a tribunal?  Well, the first thing is to acknowledge that ‘things are not right’.  So, do not bury your head in the sand and hope it will go away – it won’t!
  • If you have been unfortunate enough to have been taken to an employment tribunal before, it will be taken as a given that you have amended the way you do things; if not, the tribunal will be extremely unsympathetic to any defence you may try to put forward.
  • Be consistent, as well as fair, with the way you deal with similar issues.  Where organisations are larger, or work from different geographical sites, this is easier said than done – hence the need to ensure that effective company communications are in place.
  • Always ‘count to ten’ before committing to any action – fully investigate the issues first.  Ideally this should be undertaken by someone different from the person who will be deciding about an employee’s future in the company.  Gain witness statements (if appropriate) which are dated and signed.
  • Always seek the ‘other party’s’ version of events – there are two sides to every story.  Consider any mitigating circumstances and factor in to the decision made.
  • Keep the employee informed at every stage of the process – in writing.  Give the employee a right to an appeal, heard by someone not previously involved if possible.  Allow them to be accompanied at each stage.
  • Keep an open mind throughout the process, actively listen and demonstrate that this is being done.
  • Do not express opinions, conjecture or a hasty decision in writing –this includes emails – stick to talking if you have to comment, as companies are obliged to provide all their evidence at a tribunal.

What do you think?

Any questions or feedback?  Please get in touch!

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