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Avoiding Successful Employment Tribunal Claims
14 January 2010
According to The Tribunals Service there were 151,000 employment
tribunal claims in the year 2008/09. Whilst the number of equal pay
and sex discrimination claims fell from the previous year there
were rises in cases for unfair dismissal (up 29%); breach of
contract (up 31%); redundancy pay (up 48%) and redundancy - failure
to inform and consult.
It is not always possible to avoid a tribunal claim. However,
there are steps that can be taken to try to reduce the likelihood
of a tribunal claim being brought and to increase the chances of
successfully defending any tribunal claim that is brought. Below
are some suggestions of steps that can be taken to assist in
dealing with potentially contentious employment issues.
1. Act Promptly
Unnecessary delay can lead to very significant difficulties
arising in a wide variety of employment situations. Many tribunal
claims will be determined by adherence to good procedures. For
instance, the length of any inappropriate delay in investigating
potential disciplinary or grievance allegations will be considered
by the tribunal when deciding the issue of unfairness. Delay may
also prevent an amicable solution to grievances and increase the
period of a sickness absence.
Care should still be taken when using independent third parties
to conduct investigations. If using independent third parties, keep
track of progress and ensure there are documented attempts at
ensuring a reasonable timetable is adhered to and that the reasons
for any delays (eg witness availability) are recorded.
2. Policies/Procedures
It is essential that policies are regularly reviewed and are
kept up to date to ensure they are legally compliant and reflect
the organisation’s then current practice. Policies should then,
wherever reasonably possible, be followed.
Following an appropriate procedure is an essential part of
ensuring that employees are treated reasonably and of successfully
defending tribunal proceedings. It is important to regularly review
the procedure that has been adopted as circumstances develop.
3. Training Line Managers
Managers should be properly trained on all policies which they
are going to be using in their role. Training should be given
before the manager actually needs to follow the policy in question
and their knowledge should be regularly refreshed.
4. Keep Proper Records/Notes
Written records should be kept of all steps taken in a
particular procedure. They should be as full as possible.
Relevant documents will be closely examined in all tribunal
claims and their contents are often critical to the outcome of
hearings. All documents which are relevant to a claim i.e.
documents which support or detract from the defence of a claim or
which support or detract from the Claimant’s claim must be
disclosed.
Hearings can take place many months after the events in question
and, in the absence of written records, it may be difficult for a
witness to accurately remember the details of discussions that have
taken place. Even handwritten notes in a work diary can be
helpful.
Proper records are also essential as management tools, for
instance in dealing with attendance issues.
5. Keep an Open Mind
When dealing with disciplinary matters or grievances it is
important for the employer not to jump to conclusions about what
has or has not taken place. This applies to how initial concerns
are handled - just because some action is suspicious does not mean
that a negative explanation is the only explanation. Consideration
needs to be given as to whether it is necessary for a full scale
disciplinary investigation to be instituted when a suspicious event
occurs or whether a low key enquiry for further information from
the employee might clear up the issue or at least indicate the
direction that further investigation should take.
The outcome of disciplinary proceedings should not be prejudged
no matter how strong the evidence available before the hearing
appears to be. Those making decisions need to be certain that they
have understood the representations put forward by, or on behalf
of, an employee. Sufficient time should be allowed to read and
consider the notes of a disciplinary meeting, and the other
relevant information, before coming to any decision. Also
consideration should be given as to whether any further information
is necessary to reach a proper conclusion.
6. Gain Appropriate Information
Investigations need to be sufficiently rigorous to ensure that
appropriate decisions are made. Avenues of enquiry that arise
during the investigation should not be ignored. Steps should be
taken at an early stage to secure any evidence that might otherwise
routinely be destroyed. That may mean making enquiries before the
full investigation is under way. A statement taken a few days after
the events in question may carry more weight with an employment
tribunal than one taken months later.
This article was first published in Fire
Magazine
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