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How to limit your chances of facing an employment tribunal

28 August 2009

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Managing Director
Peninsula Business Services

Peter is the managing director of Peninsula Business Services, the UK’s largest employment law and health and safety consultancy, which advises more than 23,000 businesses. Peter is a keen football fan and his other interests include reading and a real passion for Manchester United

A potential scenario: a practice staff member hasn’t been performing to their usual standard and has attracted complaints from patients. You know you have to have a word with the employee, so you call him or her into your office and explain that you must let him/her go immediately, because you don’t want any more criticism aimed at your practice.

In which case, you might expect to see yourself defending an unfair dismissal claim at an employment tribunal in the near future.

Employees are increasingly aware of their rights in the workplace and that they can take a case to tribunal when they feel that their employer has wronged them in some way. Practice managers therefore need to be equally familiar with – at least the basics of – employee relations or the chances of having to defend yourself at a tribunal will be significantly high because you have, perhaps unwittingly, done something wrong.

Realistically, there is nothing you can do to prevent a member of staff from lodging a tribunal claim. Some employees may think they have a genuine case – for example, if they feel that you have unlawfully and unreasonably withheld some of their pay upon termination of employment. Others may simply wish to try their luck with a claim of unfair dismissal in the hope of a compensatory financial award.

Acting incorrectly when it comes to your employees can be very costly. Awards can range, depending on the claim, from as little as a day’s pay to a maximum of, currently, almost £80,000 for a top-range unfair dismissal claim. Awards in discrimination claims have no maximum and a tribunal may award as high a figure as they feel is just and equitable in the circumstances.

It can seem that legislation and the tribunal system is stacked in favour of the employee, and recent government moves have reinforced that idea. In 2004, regulations were introduced that meant an employee could not bring about a claim without first having set out his complaint, in the form of a grievance, to his employer and allowed 28 days before lodging the papers.

This requirement was removed in April 2009. Now we are back in the situation where an employee can effectively jump the gun and make a claim, so that the first you know about a problem with this employee is when you receive a letter from the tribunal asking you to respond to the claim. Of course, there is nothing you can do about an employee making a claim who wants their “day in court”, or indeed when they make it (subject to the usual three-month time bar).

Despite this, there are steps you can take to limit the chances of being taken to a tribunal, and, in the event of a tribunal claim against your practice, give you the best defence possible.

Employment documentation
All employees are entitled to receive a written “statement of employment particulars” (a contract of employment) within two months of starting work. This sets out the terms and conditions relating to the employment so the employee knows exactly what he/she is entitled to.

This saves confusion and argument, and potential tribunal claims. Of particular importance are discipline and grievance procedures, because these are the routes via which both parties can attempt to remedy problems. Tribunals will test such procedures and their robustness.

Be aware of employment law
There are hundreds of pieces of employment legislation, and while you don’t need to be familiar with them all (even HR professionals know that is unrealistic!), there are key areas that you should know your way around.

Some procedures are so specific in their requirements and time limits etc, and have been constructed in such a particular way, that any deviation from them is likely to result in a definite finding of unfair dismissal at tribunal. Having the best of intentions is ineffectual if these procedures are not followed – so even if you didn’t mean to fall foul of the rules, you are still likely to lose.

For example, the statutory retirement procedure currently allows you fairly to dismiss an employee who has reached your practice’s normal retirement age (provided, usually, this is over the age of 65) as long as you stick to the procedure. Carrying out the prescribed actions how and when you should ensures that, if the employee does claim, it should not result in a finding of unfair dismissal and, potentially, age discrimination. One small departure, though, and a tribunal is likely to find that the employee is successful.

Equal opportunities
Discrimination is one of the fastest-developing aspects of employment law and has an impact on all areas of the employment relationship, from prerecruitment right through to termination and, sometimes, beyond. Adopting and following a well-drafted equal opportunities policy will stand you in good stead should you be faced with a discrimination claim.

Training line managers in equal opportunities effectively helps them to help you avoid a special provision, which means that the employer is liable for discriminatory acts carried out by their employees – whether with their knowledge or not. Spreading the practice’s ethos of non-discrimination should help any defence you may have to make.

Take all complaints seriously
Most problems can be nipped in the bud if they are dealt with effectively when they first arise. Burying your head in the sand may well turn a small whinge by a staff member into a full-blown grievance. Not dealing with a grievance correctly and in accordance with your grievance procedure could eventually land you at a tribunal, potentially facing a constructive dismissal claim.

Knowing that their problems will be listened to and taken seriously gives employees confidence that any future problems will be handled in the same way. So just taking notice of any issues leaves staff less likely to turn to a tribunal in the absence of workplace resolution.

By the same token, don’t rush in with a big stick at the first sign of trouble. Employee complaints are sometimes about the behaviour of another staff member – if you then immediately go to the staff member complained about and hand out unreasonable punishment, the likelihood is you’ll receive a complaint from them too.

Be consistent
Hopefully you won’t have a catalogue of past disciplinary issues in your staff’s personnel files. But if you do, you should look at these before you decide on appropriate disciplinary action on your current case. When giving disciplinary sanctions, you should look for occurrences of similar misconduct from other employees to remind yourself of the sanction they received and apply the same treatment.

Obviously there will be variances due to different disciplinary histories of different employees, or differing levels of employee (managerial or otherwise). A consistent approach in deciding what “punishment” is appropriate ensures that employees know the consequences of certain actions. Inconsistent disciplinary sanctions for the same offence may cause resentment, ill-feeling and possible complaints.

Employees have nothing to lose by making a claim – only in extremely rare circumstances will it cost them anything to do so. It is worth remembering that if an employee does bring a claim, it does not necessarily mean that you have done anything wrong – sometimes it just needs a tribunal panel to tell the employee their case has no merit for them to believe it.