If your business has had to defend an Employment Tribunal claim, you will know only too well that this can be a time-consuming and costly process. There is also the added risk of an award of compensation if the claim succeeds, and your business may also face significant reputational damage as a result of an unfavourable Judgment, particularly if the case catches media attention.
Following Part 1 in our webinar series on Employment Tribunal claims, here are our top tips to help you minimise risk.
1. Follow a fair process
Failure to follow fair procedures when dealing with HR issues will usually lead to formal complaints, which can easily escalate into Employment Tribunal claims if not resolved. The appropriate fair process that you need to follow will depend on the particular circumstances.
An unreasonable failure to follow the ACAS Code of Practice on Grievance and Disciplinary Procedures in relevant cases can lead to any compensation awarded being increased by up to 25%.
2. Check you have the right policies and procedures in place
Employee Handbooks can vary in volume and content and there will be specific policies and rules which apply to different business sectors. But there are certain HR policies that all businesses are required to make available to staff. These include disciplinary and grievance procedures.
Equality and diversity policies are also recommended. In discrimination cases, employers can be held responsible for the discriminatory acts of their staff (known as vicarious liability), but liability can be avoided if you can evidence you have taken all reasonably practicable steps to prevent the discrimination taking place (known as the statutory defence). As a minimum, this requires a policy on equality and regularly training staff on that policy and the legal requirements.
3. Train your managers, and repeat and update training regularly
Line managers are usually the first to know about any potential staff issues. Ensure that managers are trained to:
- spot and differentiate between informal day-to-day issues and more formal complaints;
- have the skills to handle difficult conversations with staff, for example around performance issues;
- understand your business' internal processes, as well as the legal and practical considerations that should be taken into account.
Ensure you repeat and provide regular and meaningful training sessions to all staff, including managers. This should include regular training on equality, diversity and inclusion. A recent Employment Appeal Tribunal case found that "stale" diversity training (which was less than two years old) was not effective to allow the employer to run the statutory defence and escape vicarious liability.
4. Don't avoid difficult conversations, but take care with discussions about termination
Claims will often arise when tricky situations have been left to fester. Tackling issues at the outset can assist in resolving matters early and amicably and can avoid escalation to more formal complaints, or indeed claims. Experienced managers who are skilled at having difficult discussions can assist by having less experienced managers shadow them, alongside more formal training.
Care should be taken, and legal advice sought, prior to having discussions with staff about terminating their employment, particularly before any formal procedures have been started. Whilst there are ways of having confidential, pre-termination and/or "without prejudice" discussions with staff to discuss proposed exit terms, if these conversations are not handled in the right way, they can themselves lead to complaints of victimisation, retaliation and/or constructive dismissal.
5. Beware what you put in writing
Documents (in the broadest sense) – particularly emails – can win or lose a case.
Unhelpful emails, Whatsapp messages or other written communications could be caught by a data subject access request and by disclosure obligations in legal proceedings, meaning that employees may be entitled to be provided with copies.
In brief: don't put anything in writing that you do not want an Employment Judge to see, or that you would not be able to comfortably explain in a public Tribunal hearing.
6. Take time to plan: failing to plan is planning to fail
Ensure that you have considered how formal procedures will be managed and by whom, as well as any key timing requirements. For example, collective redundancies will require a minimum period of consultation before the first dismissal can take effect.
Check you have correctly identified which managers will deal with different stages of a formal process. For example, in disciplinary cases, different managers should, as far as possible, deal with the investigation stage and the disciplinary stage. Appeals should be dealt with by a more senior manager who has not previously been involved.
Poorly thought-through or rushed processes will often result in complaints and claims.
7. Take care not to inadvertently waive legal privilege
Material which is covered by a form of legal privilege is exempt from disclosure in litigation and under a data subject access request. If legal privilege applies, you may be able to legitimately withhold the documents.
It is easy to lose privilege through simple actions, rendering the document disclosable. As a basic rule: keep legal advice strictly on a need-to-know basis. Do not circulate legal advice internally unnecessarily; this should only be provided to authorised persons and decision-makers. Keep privileged and non-privileged communications separate (which includes using different email chains).
8. And finally… when in doubt, seek legal advice
Sign up here to join me, and Sam Murray-Hinde, for Part 2 in our webinar series on 17 March 2021 at 11am GMT for our practical tips and guidance on Managing Employment Tribunal Claims.