Avoiding Tribunal claims is always a key concern for all employers. While the risks of a claim can never be totally eliminated, there are a number of practical steps that all employers can take to both significantly lower the risk and protect themselves if the worst case scenario should occur.
Employment Tribunals are stressful, expensive and often uncertain in outcome, so following these five simple steps can help to put employers in the best position to avoid and ultimately resist employment claims:
Everything begins with the written Contract of Employment, as this sets out the legal rights and obligations of each party. A full and properly drafted Contract of Employment creates certainty and expressly covers areas of the employment relationship that often cause disputes, such as renumeration, holiday entitlement or sickness pay.
Careful consideration must be given to making sure the contract terms fit the role and duties of the employee and that it is tailored to refelct everything that is expected from them and from you. Generic template documents downloaded from the internet often create more confusion and should be avoided.
Once the Contract of Employment is agreed and signed, this is the document which covers the employment relationship and is the first document any Employment Tribunal will look at in the event of a claim. Getting it right from the outset and ensuring that all bases are covered is the key to self-protection for employers.
Equally, it is important to remember that employment terms will necessarily evolve as an employee’s career and role with a business develops. Undertaking regular reviews of your employees’ Contracts of Employment will ensure that they remain fit for purpose and accurately reflect the roles and responsibilities specific to each individual.
In addition, periodically reviewing and updating your Contracts of Employment will ensure that they reflect current best practice and are compliant with any changes to employment law. In the event of a claim, Contracts of Employment which have been well managed, are well drafted and professionally presented, will create a positive impression of an efficient, compliant and reasonable employer and are less likely to be found inadequate, or worse still, non-compliant. In contrast, poorly drafted, out-dated and non-compliant contracts suggest an inadequacy of proper consideration by an employer to serious employment issues.
Normally, the full range of the modern workplace policies and procedures required to set out the expected standards in all aspects of the employment relationship are not included within the Contract of Employment.
These details are typically set out in a non-contractual Staff Handbook or standalone set of policies. However, this does not mean they are any less important than the Contract of Employment itself as they express in more detail the expected standards and the framework for all key aspects of the employment relationship.
Many of these policies will be critical to resisting Employment Tribunal claims as they will show what is expected of your employees and how departures from the required standards are both monitored and resolved.
A full and up-to-date set of workplace policies and procedures are essential documents in the necessary armoury for defeating an employment claim, so long as you as the employer are able to demonstrate your own compliance with them, as well as their monitoring, supervision and review.
As is true of poorly managed Contracts of Employment, to have a set of well drafted policies and procedures which have not been implemented in practice, and policies which have not been followed, demonstrates poor management and would increase the risk of a successful claim.
Having a full set of workplace policies and procedures which are compliant with current employment law, as well as evidence-based reporting system to show internal compliance monitoring and regular review is key to their effectiveness in the event of a claim or an Employment Tribunal.
For more, take a look at our recent article: Employment Law Top Five: Employment documents that every employer should have
Where a possible employment dispute appears likely or an employment issue arises, it is important to proactively manage the situation and, as a reasonable employer, act quickly in accordance with the relevant policy.
Openness, fairness, consistency and transparency are all key indicators of a fair and reasonable employer.
Situations almost never improve through delay or not taking the workplace issue seriously. Being proactive and consistent in employee discussions and emails, whilst not either pre-judging the issues or jumping to conclusions without full information and evidence will also be important factors to potential de-escalation or, in the event of a claim, protection.
Instructing a specialist employment solicitor to help manage the process from the outset is advisable as the Employment Tribunal will often look as much at the process and procedures adopted in the dispute as the outcomes. Do not delay, do not ignore and seek early legal advice before key decisions are made.
Not all companies have the benefit of a dedicated in-house HR team to assist, manage and deal with employment issues and, although subscription HR services are available, they often provide generic or general advice which may not be best suited to your situation and can lack the necessary commerciality to enable you to make the right decisions for your business.
For this reason, the management within an organisation often have the unenviable role of both day-to-day operational responsibility and wearing a ‘HR hat’, without possessing the knowledge or experience to navigate the employment law minefield.
Investment in HR training at a level consistent with the manager’s role will equip all managers who interact with staff with a basic understanding of the employment law and discrimination frameworks.
Whilst your management do not need to be HR professionals, they should be able to identify when they need to take specialist advice as an employment dispute or workplace situation develops. An awareness of potentially disruptive workplace issues and the insight to refer for specific advice is an important step in the prevention of workplace issues escalating out of control and into employment disputes.
Disputes can often involve employees taking early entrenched and emotive positions which could have been diffused as a result of earlier intervention.
Even when the first four steps are fully and successfully actioned, employment disputes cannot be entirely eliminated. Even for the most astute employers, employment dispute can arise, these disputes can lead to claims and these claims can ultimately lead to Employment Tribunal proceedings.
In the event of an employment claim, evidence of the actions you have taken and the reasons for them will be key if the matter proceeds to an Employment Tribunal.
What is evidence? In the event that an employment claim goes to an Employment Tribunal, a full paper trail of the key events leading to the dispute, its cause and the actions of the employer once the dispute has arisen will all be important evidence to present. This should also include a clear and full email trail with the employee, where the issues are set out with the employer’s full responses.
It is crucial for employers to remember that any communication with an employee in respect of the dispute – even informally – should be documented and confirmed in an email. All meetings regarding the dispute should be minuted and the minutes provided to the employee for approval as a true record of what was discussed and its outcome.
Every step along the way should be documented, this not only provides a definitive record of events but avoids unhelpful gaps in the history of the employment dispute. A complete record of the actions and responses of both parties will be an invaluable asset to any employer defending a claim.
Where key events are not documented, resolution is impossible without verbal evidence being given at an Employment Tribunal. One individual’s word against another on a key issue in an Employment Tribunal claim is never a comfortable position to be in for the employer or for the witness themselves.
Finally, having this level of recorded material will enable a far more robust defence to be mounted on your behalf and in doing so will deter any claim, or will facilitate the settlement of any claim on much better terms, if the employee can see that you have the paper trail required to resist their claim.
This article should not be relied upon as a substitute for professional legal advice. If you are an employer seeking legal advice on a particular matter or employment dispute, please contact Peter Rolph by emailing [email protected] or by completing the form below.
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