How can employers avoid an Employment Tribunal?
The simplest advice, of course, is to ensure that all of your employees are happy and contented and never have any complaints they would want to take to a Tribunal. However, in the real world even the best employers can not achieve this all the time.
The Employment Tribunal is a free service, there is no fee to pay for issuing a claim and if the employee acts in person, or has free advice (e.g. from a law centre or CAB) there is no obstacle to bringing a claim. Some employees also have the benefit of legal expenses insurance.
As defending a claim – even one doomed to failure – is inevitably going to cost the employer in management time and legal fees, it is worth investing some time and money in avoiding claims as much as possible.
Things to do as routine
The most important thing is communication. Many disputes start through poor communication and the parties misunderstand each other’s desires and motives. Entrenched positions are adopted and compromise becomes difficult.
It is essential to have your contracts of employment and policies and procedures written and clear and kept up to date. Problems can be avoided if everyone knows where they stand. Employees are entitled to receive the basic particulars of their employment in written form within two months of starting work and can be entitled to automatic compensation if this is not done. Issues such as salary and working hours should be kept up to date.
Pay statements should be clear and understandable, especially with regard to issues such a minimum wage and statutory sick pay. Working Time procedures and records should be clear and well-kept.
The disciplinary procedure and grievance procedure, in particular, should be clear and should comply with the ACAS Code and Guidance.
Proper training for managers and HR staff is essential, so that they deal with employees properly, can identify potential problems before they become serious and protect the employer’s position. Equal opportunities policies are only of use if backed up by training to give the employer a possible defence to a discrimination claim as well as to avoid discrimination (perhaps unintentional) in the first place.
Don’t duck issues or hope that they go away or will get better on their own – they rarely do.
Make sure that all meetings are documented and proper records are kept. If a claim does get as far as the Tribunal, you want to make sure that you win it – or ideally can show such a strong case that the claimant gives up. There is no substitute for a proper paper trail evidencing that all the proper procedure were followed.
Things you want to do
As well as good practice and procedure to follow all the time, employers will want to take various steps from time to time which may cause problems. The most obvious of these is dismissing an employee. The approach very much depends on the reason for the dismissal. In all case, employers should take early professional advice. Many claims can be avoided if dealt with properly from the outset.
If the dismissal is going to be on account of redundancy, it is important to go through the proper procedures to select the right employees who will be at risk of redundancy and to consult with them properly. A failure to consult can turn an otherwise fair redundancy into an unfair dismissal claim. It may be necessary to go through collective consultation with employees as a group – failure to do so can lead to each affected employee being entitled to 13 weeks’ pay as compensation.
If the dismissal is a result of a disciplinary matter, never fire an employee on the spot, no matter how heinous the crime. Suspend the employee if necessary, but then be sure always to follow the disciplinary procedure and comply with the ACAS Code and Guidance. Dismissing on grounds of capability is a long-winded procedure, usually needing several warnings.
Employers also need from time to time to change the terms and conditions of employment. This is another area fraught with difficulties and early advice is essential to avoid unfair dismissal claims. Problems often arise when employers inform employees of changes and rely on their silence as indicating an agreement to the change. This is not necessarily the case and employees can sometimes bring claims based on the original terms, even years later.
Another pitfall comes from insourcing or outsourcing. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) will often transfer employees when their job transfers from one organisation to another. For example, when an employer outsources its IT function, its existing IT staff will probably transfer to the outsourced company and both can be liable if the transfer is not handled properly. If a while later the function is brought back in-house, the employer can find itself suddenly saddled with the employees of the outsourcing company. The employer can protect itself with a properly drafted outsourcing contract.
Things that happen
Despite taking all precautions, problems will arise. The key then is to avoid these turning into costly Tribunal proceedings. Ensure that there is a proper grievance procedure and that is complies with the ACAS Code and Guidance. Do the employees have any faith in the procedure and believe that they will get a fair hearing? If not, they will remain dissatisfied. Consider the use of professional mediation (either through ACAS or a private mediator) – not only can many potential disputes be nipped in the bud this way, but it can even repair the employment relationship.
The key steps to avoiding the tribunal can be summarised as paperwork, communication and taking timely advice.
This article was written by Catherine Gannon, Managing Partner and Alex Kleanthous, Partner of Gannons Solicitors