How to Avoid Employment Tribunals
In this HR Blast, given that employment tribunals (ET’s) are on the rise again, we focus on trying to avoid Employment Tribunals and Tribunal claims. We know that’s not always possible, but so often it’s the tiny things that can escalate into big things, and those can cost money and lots of management time to sort out. And that’s not in anyone’s interests!
If you don’t want to read any further because the thought of employment law makes you groan, just know that so often managing people is about employee relations, aka nurturing the relationship between the company and its staff, rather than needing a detailed knowledge of the multitude of relevant legislation. So, read on if you’re brave enough…
First, some interesting stats
No-one will be surprised to know that following the abolition of tribunal fees last July, claims received at employment tribunal are now at the highest they’ve been since the fees were introduced for applicants back in 2013.
- For single employment tribunal claims in the last quarter of 2017 (October to December) compared with the same quarter the previous year, claims received have increased by 90% and caseload outstanding has increased by 66%.
- Of the applications received to 31 December 2017, 93% (4,453 applications) related to cases brought in England and Wales. The remaining 7% (347 applications) were from Scotland.
- Between 20 October 2017 (when the ET fee refund scheme was introduced) and 31 December 2017, 3,400 ET fee refund payments have been made, with a value of £2.8m
So, what? The true costs of tribunals…
Losing a tribunal can be a costly exercise. For example, the Employment Tribunal Statistics for 2016/2017 cite the compensatory awards for a successful sex discrimination claim as:
- Maximum Award £127,230
- Median Award £8,381
- Average Award £19,152
You can then spend between £8,000 and £30,000 on legal fees, depending on the complexity of the case and the cost of the solicitor, plus use of barrister (around £10,000 would be our expectation for a one-day case).
There is also management time to consider; for a manager on £40,000 per annum, the cost to the business of them spending two weeks on preparation ahead of a tribunal hearing could be around £2,000, plus their distraction from the work they should be doing and the impact of the stress on them. But there are also other costs to consider, such as reputational damage to the company, which could cause clients/customers to leave you (if they don’t think you’re acting with integrity and honour towards your staff) as well as employees, both current and prospective. Employee morale can also take a massive hit, and the most senior people in the company can be heavily distracted by a tribunal, meaning they’ve taken their eye off the ball and therefore the bottom line.
And if these costs have not had the impact on you they probably should have done, then be aware that the Tribunal has just awarded £47,433 including £25,000 for injury to feelings to a transgender woman who brought a discrimination claim against Primark. The sums involved are not insignificant and all businesses need to be aware of how to minimise the number of claims being brought against them.
What do I do?
Here are some proactive things you can consider, to help you avoid Employment Tribunals and stay out of court.
If you are interested in reading our advice for a particular heading, click + in each section to expand ...
If you hear someone complain, don’t just stick your head in the sand. Ask them about their comments (in confidence, in a private room); actively listen to what they have to say; identify whether it needs to be dealt with as an informal or formal** grievance; make sure you have understood the issues and then take appropriate action, ensuring that you note it somewhere for future reference, or follow up in writing with them, even if only by email.
It is amazing how the smallest thing can be resolved quickly if you tackle it straight away. Giving someone an opportunity to get something off their chest can be so powerful in avoiding it turning into a much bigger issue.
** if it is serious and/or involves potential bullying, harassment, violence or discrimination it is usually more appropriate to move straight to a formal grievance procedure – check your Grievance Policy, Code of Conduct, Equalities Policy etc. to see how your organisation usually handles issues of that nature. If you need these documents then visit: www.docswizard.co.uk
Managers don’t have to be employment law experts, nor do they have to always follow every procedure or process by the book (in specific circumstances, flexibility is possible). However, they should have a good basic understanding of how to take staff through formal procedures when there are issues with performance, conduct, absence etc. in a way that avoids conflict, minimises allegations of discrimination and damage to the employment relationship, and ensures that any formal action is justified and can be defended.
It’s also important that managers know how to deal with any issues that arise, including handling grievances where a member of their team raises a complaint, as a proactive stance on this can ensure that; (a) loyal employees stay because their concerns have been addressed, (b) employees who are behaving in inappropriate ways can be dealt with, whether formally or otherwise, (c) where an unhappy employee leaves and later claims constructive dismissal, the company can show it took steps to deal with their grievance properly and therefore that there was no fundamental breach of contract/to the employment relationship (thereby undermining their claim).
And… don’t underestimate the importance of soft skills training for your managers when dealing with these matters. Coaching or training in effective communication, active listening, constructive feedback etc can have a significant positive impact on the way that employees respond to managers under these circumstances. Empathy, a listening ear, confidence and credibility are just as vital for a manager to have, as knowing the appropriate procedural steps.
Senior managers should be, and are, role models within any organisation. Where they lead, others will follow, and therefore educating and informing them about how to deal with difficult issues and make fair decisions – avoiding any discriminatory behaviour – is essential if you want to steer clear of an ET claim. Make sure they are engaged with, and fully understand, the do’s and don’ts and potential pitfalls when it comes to managing people. They can have a grievance brought against them just as easily as anyone else…
Offer them coaching, training, peer support – whatever is relevant to them and their role and consider communicating their engagement with these principles to the company as a whole, as part of a relevant comms plan or programme e.g. as part of a #TimeToTalk campaign on reducing sexual harassment in the workplace, or as a part of a Diversity & Inclusion drive.
Develop a zero-tolerance approach to people who are not willing to understand and accept the modern workplace for what it is, and how they should behave accordingly i.e. that they need to proactively manage staff issues, should act in line with company values and processes, can’t flout the law on a whim, shouldn’t spout rhetoric about the good old days when women were chained to the kitchen sink…
These people tend to fit into two categories (1) those who generally bury their head in the sand and try to pretend nothing has changed over the last forty years, therefore ignoring any issues that arise, or (2) those who actively seek out conflict about employee’s rights and outright refuse to take appropriate steps because they disagree with the law/processes/organisational culture. Either one is an unnecessary risk to your business, and could cost money and time, so take action. There’s nothing wrong with starting informally i.e. with training, coaching, other types of education, to help them understand the modern workplace and their place in it. If you meet resistance and they are not willing to change, be prepared to take formal action against them, potentially through your disciplinary procedure.
In a recent talent survey, a huge number of respondents in the 18 to 25-year-old category cited that one of the main factors when deciding whether to accept a job offer was their personal/professional compatibility with the culture and values of the new company (this was almost as high as salary considerations).
People want to come to work and be happy, and if the culture/ethos/mission statement/values you sell them are not what they experience, they’ll feel cheated and their morale and productivity may dip, or they may leave altogether. So, make sure that your policies, procedures, behaviours, training, reward systems, management approach etc. all embody the culture and values you stand for. If you have an equalities policy that says everyone will have access to the same training and promotional opportunities, make sure this is what happens in reality and that certain parts of your workforce aren’t shut out by unfair communications or advertising practices. If you pride yourself on diversity by employing a high proportion of women, make sure that flexible working requests aren’t being turned down arbitrarily, just because it’s easier to manage full-timers.
Take a look at your culture and values, measure what is happening and take action where there are areas that can be improved. Narrowing any mismatch between people’s expectations and the reality, can help reduce the number of grievances and appeals to formal processes that you receive.
Put an emphasis on personal accountability. Make it clear that every member of staff is responsible for their own behaviour and its impact on those around them, and that action will be taken if people aren’t getting behind the organisational culture and how you do things.
Encourage people to speak up - circulate the relevant policies to remind staff of your expectations; set up or support a staff forum or talking groups; consider setting up a reporting helpline; reiterate that if someone has a concern, they have a responsibility to deal with it appropriately, starting with raising it with their line manager rather than shouting at someone in a corridor, sabotaging a meeting with negative behaviour or sending out shirty emails. Don’t tolerate people acting like children; educate them, support them, nurture them – but take formal action if someone’s attitude is below the standard you reasonably expect.
Sometimes when things go wrong, our egos can get in the way, and we’re determined not to say sorry to someone in order to save face or because we’re worried it might come back to haunt is in the long run. But saying sorry now, following an incident or error, rather than later i.e. after a claim has come in, can often be the best way forward.
Saying sorry now might cost you a few thousand at tribunal if it’s seen as an admission of guilt, but on the other hand, tribunals will take into account the steps the employer put in place to try and repair the employment relationship, if for example, someone has resigned following issues and is claiming constructive dismissal, and the tribunal judge may decide the person acted unreasonably in resigning. It will also likely save you many thousands more in the legal fees and time spent putting forward a defence you know is fundamentally flawed because what the ex-employee says happened, did actually happen. Better to own up and try to get it right, rather than make flimsy excuses!
Key skills when you are seeking to avoid formal conflict at work include the ability to demonstrate humility; having the confidence and maturity to leave your ego at the door; and having the wisdom to know when all that is required is a heartfelt apology.
Take time to make sure that your legal letters demonstrate empathy and understanding; that processes take into consideration personal insecurities and anxieties; and that formal meetings are conducted with a view to maintaining an individual's self-respect rather than clumsily damaging all that is good. This comes right back to offering managers at all levels the right education, information and support so that they have the skills to deal with formal processes in an empathetic, efficient and human way that avoids complaints, discrimination allegations and avoids issues running on and on
Above all, learn from every complaint, error and mistake that you and the organisation come across. Ask yourself what went wrong, what could have been done differently, how can we do things better next time, is there any action to take? Self-reflection and self-awareness aren’t fluffy terms but are powerful tools that can be harnessed to address areas of risk and make the workplace better for everyone – you included.
Want to know more about tribunals and how we can help you improve your employee relations in practical terms? We offer support through:
- Pragmatic and commercial advice to you and your managers, including leading formal processes where you want us to i.e. grievance.
- Half or full day training sessions for your HR team and line managers delivered by our Jaluch team, covering topics such as managing discipline and poor performance; managing grievances; employment law for managers; coaching skills for managers; motivating, engaging and retaining staff
- Coaching for managers, including psychometric profiling to help them understand themselves and how to communicate best with others.
- Train the trainer sessions and materials for your trainers to roll out training internally.
- Managers Guidance, Letters, Forms, Policies etc to help you through difficult staffing issues – available on DocsWizard through a low cost annual subscription model: https://www.docswizard.co.uk/
With Jaluch, no onerous or long-term contract is required as we have a pay-as-you-go option which can be very quickly set up so there is no delay in us giving you the support you need. Why wait? If you would like to discuss any of the above further, then please don’t hesitate to call a HR Consultant on 01425 479888.
*Source: Ministry of Justice Report 8 March 2018: Tribunals and Gender Recognition Statistics Quarterly, October to December 2017 (Provisional)
The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.