Reducing the Risk of Tribunal Claims: Proactive HR Strategies

Hindsight is a wonderful thing! Working in the litigation department at Neathouse Partners, I see my fair share of Employment Tribunal cases where a dispute, sometimes quite minor, has escalated to the point of Tribunal, with both parties becoming exasperated along the way.

What is an Employment Tribunal?

The Employment Tribunal is there to adjudicate employment law disputes, but for an employer it is often costly in terms of legal fees and time.

Proactive HR Strategies to Reduce Tribunal Risk

This article looks at proactive approaches which help reduce the risk of claims and, at the very least, leave the employer in a better position to defend the claim or negotiate a deal.

Many litigated disputes arise out of:

• performance management;
• complaints or grievances;
• disciplinary or performance management issues; and
• inconsistencies in the application of company policies, such as holiday and sick pay.

Before starting, an initial caveat, this isn’t a walkthrough of disciplinary, performance and grievance procedures. Frankly, it is crucial to be familiar with these procedures which are underpinned by the  ACAS Code of Practice for Disciplinary and Grievance Procedures. It is not a legal requirement to follow the ACAS code but an unreasonable failure to do so can result in increased awards of compensation.

Effective Performance Management Strategies

Performance management is necessary in situations where an employee is not performing. An employee should be capable of doing the work they were employed to do. When performance starts to decline, here are some pointers:-

1. Probation periods when used properly are an ideal time to consider the employee’s suitability for the role when the employer’s exposure to potential legal action is limited.
2. Speak to employees informally about any concerns early on.
3. Start a paper trail, keeping records of discussions, improvement points and communicating these to the employee, so the employee knows what is required of them.
4. Keep job descriptions and targets up to date.
5. Don’t forget about training. Has the employee had or being offered training or additional support as part of the process?
6. If there has been a sudden decline in the quality of work, consider if there are other factors to consider, such as problems at home or ill health which might be impacting on performance. These factors may also lead to risks of discrimination claims, if not handled correctly. Discussions may also highlight other underlying issues such as excessive workload, or poor management.
7. Appraisals can be useful in detailing any performance concerns and/or highlighting areas for improvement. For appraisals to work effectively, it is important for managers to be honest in their feedback.
8. Never use a performance procedure whether formal or informal, to knit pick, excessively criticise, or humiliate the employee in front of their colleagues, or at all.

In conclusion;

• Act in a timely way
• Be reasonable, be reasonable, be reasonable
• Evidence of poor performance is vital without this the employer will struggle to show their belief and actions were reasonable.

Consistent Application of Policies.

Problems can arise if employment policies are not applied consistently. Team morale can be impacted if it is perceived that there is one rule for the manager’s pals and another for the rest of the team. Other situations arise when a company policy says one thing, but the employer does something else.

For example, the sick pay entitlement might be Statutory Sick Pay (SSP), nevertheless custom and practice is that employees are paid their normal pay.

Then a manager has an employee who has high sickness levels and the manager doesn’t think the employee works hard or perceives the employee to be a bit of a pain – so the manager elects to pay the employee SSP only.

The employee then raises a grievance about sick pay and that they are being treated unfairly.

Could the employee complain about bullying? If the employee’s sickness absence is related to a long-term illness, are they potentially disabled and could argue that they have been discriminated against?

If this manager treats this employee differently in terms of sickness, what about if they are late – will the employee be treated the same way as other employees? Would the manager want to start disciplinary action against this employee, but not against others who might also have been late?

This is just an example, but this kind of scenario is not uncommon and shows how a situation can escalate. Additionally, it shows how personal opinions can affect the decisions made.

Conducting periodic HR audits, encouraging open feedback from managers, is a good way to learn if policies are being applied consistently. The information collected can be used to adjust policies and procedures to mitigate risk.

Another tricky area is when policies allow for the employer’s discretion. Much like the example above, having a clear rationale regarding what factors to consider when applying discretion can also help protect against unfairness, discrimination and unconscious bias. Keeping a record of how and when discretion is exercised will help identify any trends or patterns that might be problematic.

Follow Up:

• Think about occasions in your organisation where the managers generally do not consistently apply employment policies, even if it is well meaning?
• Does this expose the organisation to risks of claims?
• How can this risk be mitigated?

Manager Training on Grievance and Disciplinary Processes.

A manager is likely to carry out or be involved in performance management, grievance and disciplinary matters. So, do you managers know what to do? Do you train managers in how to conduct these procedures?

The way these procedures are carried out has a very real impact on the prospect of defending a claim. These workplace meetings and hearings are not akin to a TV legal drama, nor should they be conducted in such a way.

When a case gets to tribunal any relevant meeting minutes, transcripts, recordings, emails even text and WhatsApp messages will be reviewed as part of the evidence.

It is therefore, essential for managers to be familiar with these procedures. Managers are not expected to be employment law experts, but it will benefit the business if they have enough knowledge to know when a situation is potentially risky, or even to know whom to ask if they are unsure. The purpose is not to scare monger but to educate.

Shadowing experienced managers and HR is an excellent way for managers to learn.   E-learning resources can offer inexpensive and valuable training.   If you have a larger team, bespoke managerial training on common employment issues and procedures is an excellent way of educating and supporting managers.

Do you need HR Training? Click here to see more 

Preparation is key! Ensure the manager has the time to adequately prepare, is familiar with the issue and the questions to ask as well as providing guidance on how to handle a meeting that doesn’t go well, while remaining composed and objective.

Conclusion

In conclusion with the government’s Employments Rights Bill working its way through parliament the importance of following proper procedure will become more important.

1. Invest in your managers now, ensure they have the knowledge and skills to handle grievance, disciplinary and performance matters fairly.
2. Address performance issues in a timely way, ignoring the problem doesn’t help anyone.
3. Take the time when reviewing HR/Employment policies to speak to managers and see if there are inconsistencies in the way the policies are being applied.
4. If a dispute with an employee is developing, take advice promptly before it reaches the Tribunal door.