10 Tips for Avoiding the Employment Tribunal

10 HOT TIPS FOR AVOIDING THE EMPLOYMENT TRIBUNAL 1. Follow a non-discriminatory recruitment process 2. Provide a written Statement of Terms and Conditions 3. Review Policies and Procedures regularly 4. Never jump to conclusions 5. Manage your employees 6. Be fair and consistent 7. Keep copies of letters to/from your staff 8. Be aware of changes in employment legislation 9. Consult, inform and train 10. Seek professional advice Follow a non-discriminatory recruitment process Did you know that a prospective candidate can still bring a tribunal claim against you, even if you did not employ them, if they feel you have discriminated against them? There are various aspects of our employment legislation that allow them to do this from sex or disability discrimination through to the new age discrimination regulations (to name just a few). If you advertise a job that would suit a ’20 -30 year old’ it is likely this would be seen as direct age discrimination. If you employ a 50 year old man rather than a woman of normal child bearing age, this could be seen as sex or age discrimination. Your key is to keep detailed records of the actual, non-discriminatory reasons for your decisions during the recruitment process so that you can prove you acted fairly, should you need to do so.

Provide a written statement of terms and conditions This is often referred to as the contract of employment. It sets out the basic understanding of the terms of the role such as; employers name and address, hours of work, remuneration and benefits, and holiday entitlement. The contract can be used to set terms of employment that protect both the employer and employee against future possible misunderstandings or interpretations. Generally, terms and conditions that are likely to remain static over a long period of time should be included as contractual. Anything that may change on a fairly regular basis should be included in a staff handbook. It is far easier to change items that are not contractual, if necessary. Your employee is legally entitled to a written statement of terms and conditions once they have provided eight week’s service, although you can supply them with the written statement prior to their first day if you wish to do so.

Review policies and procedures regularly All businesses whether large or small have policies and procedures relating to the employment of their staff. They may not be formalised and written down, but they do exist. It is always a good idea to have a written record of policies (what to do) and procedures (how to do it) so that you, the employer, and your employee have a physical reference point. By reviewing your policies and procedures regularly you are ensuring that what is written reflects what is actually happening in practice. There may have been changes in employment or other industry related legislation that spark changes to your procedures, or there may have been changes to your own business practices. If your policies and procedures do change, even if only slightly, remember to let your staff know what these changes are.

Never jump to conclusions An employer received a phone call from a loan company, verifying an employees salary. The salary quoted was incorrect, and far higher than the employee actually earned so the employer asked the loan company to fax the copy of the wage slip they were in possession of. The wage slip had been altered to the employee’s advantage. The employer concluded that the employee must have made this alteration on the wage slip in order to obtain a loan. When the employer spoke to the employee, the employee insisted they knew nothing about the alteration. The reason the employee wanted the loan was to buy a car, so with the employee’s knowledge, the employer contacted the car sales person. On further probing, it turned out the car sales person had defaced the wage slip so that the employee could get his loan and therefore buy the car. Had this employer acted on his first conclusion, the employee could have been dismissed, and for no wrong doing of his own.

It is vitally important that full investigations are carried out, and recorded in writing when necessary. For a dismissal to be fair an employer needs to have reasonable belief that a wrong doing has indeed taken place. Whether a wrong doing is regarded as gross misconduct is a measure of what might be regarded as reasonable under the circumstances.

Manage your employees An employer was frustrated that their newly appointed manager was not increasing sales to the projected level. At the probationary review it was discovered that the new employee did not fully understand the key tasks of the role or what was actually required of her. This was discussed, and the probationary period extended.

All too often an employee is recruited and then left to develop a role, or to fit in with the rest of the team. Most employees need direction and reassurance especially when they are new to the company. If you don’t tell your employees what is expected of them or what your standards are, they will struggle to work toward them. Job descriptions and staff handbooks are a good way of informing staff of your requirements and they can be used as a base line for measuring the employee’s performance. Regular staff meetings should also be encouraged, the minutes of which should be kept on file and available to your staff. Details logged within minutes of meetings are often used as evidence of information given to an employee.

Be fair and consistent An employee raised a grievance regarding him being bullied by one of his colleagues. During the investigation witness statements were taken and it was discovered that the employee was being bullied, but by two colleagues, not just one. Even though the grievance only referred to one colleague, a decision was taken to discipline both offending employees as both were guilty of acting unreasonably toward another employee.

It is important to be fair and consistent toward all staff, at all times. For example; if one employee is allowed to take the odd day off sick here and there with no consequence, it would be unfair not to be consistent in this approach and discipline other staff members with similar attendance patterns. You should be able to provide evidence that your personnel practices are fair and consistent as far as reasonably practical under specific circumstances.

Keep copies of letters to/from your staff An employer dismissed an employee of eight years service for poor performance issues. The employee submitted a claim for unfair dismissal. Part of the tribunal process is to put together all the documents you intend to rely on at a tribunal and submit these to the claimant by a given date. Fortunately the employer had kept dated notes on every conversation with this employee that related to his performance, as well as minutes of performance meetings, memo’s and letters. This correspondence provided evidence that the employer had acted reasonably under the circumstances. On reviewing these documents, the employee withdrew his claim.

If an employer is to have any hope of defending a potential claim against them, then copies of correspondence, and dated notes of conversations become key factors of evidencing that the employer has acted in a reasonable way.

Be aware of changes in employment legislation Employment law changes more frequently than any other law of the UK. October sees the introduction of Age Discrimination Regulations. There will also be a new Corporate Manslaughter Act. April 2007 will see the application of the Work & Families Act which came into force on 1st October this year. This will massively change the maternity, paternity and adoption leave rights of new parents. In addition, statutory leave payments increase in April each year. The national minimum wage is generally increased each October, and the statutory redundancy payment increases each February. Apart from actual legislation changes there is also case law. Case law provides the court’s interpretation of the law and is relied on in subsequent cases. Therefore it is worth keeping abreast of decisions made in Court that may affect your own personnel practice. A good example of case law is the recent Green v Deutsche Bank that awarded a bullied employee £800,000. This is highly likely to impact future bullying cases going through tribunal.

Consult, inform, and train The Information and Consultation of Employees Regulations 2004 came into force April 2005 for companies with 150 staff or over. These regulations will be expanded to include companies with 100 or more staff in April 2007, and 50 or more staff a year later. The regulations offer a standard procedure which businesses should follow if no other provision for consulting and informing the workforce are agreed and operating.

We have found the biggest area of vulnerability for employers is when line managers are dealing with their staff. If they don’t recognise the importance of good employment relations, or of keeping concise records, or of managing performance, attendance, and conduct, the employee may have a greater prospect of bringing a successful claim to tribunal. For this reason, when line managers have received training in practical personnel issues, and subsequently understand the basics of employment law a business can significantly reduce the risk of tribunal claims being brought against them.

Seek professional advice As business owners and managers will undoubtedly agree, it is always better to get things right first time than have to go back and unravel and put right what has already been done. If you have any thoughts of disciplinary, dismissals, redundancies, take-overs, mergers and restructuring, or you receive a complaint, grievance, or a whistleblowing accusation from an employee it is well worth investing a little time obtaining professional advice. There are plenty of sources of advice; ACAS – producers of general advisory leaflets that can be downloaded on the internet; Solicitors – will tell you the legal position and draw up legal documents such as compromise agreements; HR Consultants – offering a range of services from in-house to off-site support and often become more involved in the management and implementation side of practices.

HR Response www.hrresponse.co.uk

T: 0870 7878416

10 Tips for Avoiding the Employment Tribunal - To learn more about this author, visit Sarah Duchart's Website.

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