InsightsInsight - Employment & HR - POSTED: February 26 2019
Top Tips on Avoiding Employment Tribunal Claims
Practical guidance and advice to help managers reduce the risk of employment tribunal claims
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Whilst the number of employment tribunal claims continues to grow, it is still possible to mitigate the risk of a claim and take action to minimise that risk as much as possible. Our suggested top ten tips for avoiding claims is set out below.
- Policies and procedures – Regularly review your policies and procedures to ensure that you are complying with both the law and best practice and are not tripped up by changes in law. It is not unusual for employers to follow out of date procedures or policies in good faith, only to subsequently find that the process they have followed potentially gives rise to a claim because it was based on out-dated law.
- Training – Train line managers on how to deal with and address common workplace issues and how to spot issues that need to be escalated. In our experience, a large proportion of claims arise due to conflicts and issues which are not spotted or properly managed by line managers. This means that issues that could be dealt with quickly and painlessly are allowed to escalate.
- Employment contracts – Provide employees with written terms and conditions of employment. Certainty over employment terms is good for both employers and employees and prevents conflict. Ambiguity in drafting and a failure to keep contracts up to date with both internal practice and legislation are common causes of dispute.
- Manage capability and performance – Whilst many managers are wary and reluctant to address performance issues, they should instead ensure employees are achieving targets and objectives. Poor performance should be reviewed on a continuous and structured basis so that employees know what is expected of them. It might be useful to develop an appraisal system to identify where improvement is needed. Escalating matters that have been allowed to fester unchecked is a common source of litigation.
- Flexible working – There is an obligation on employers to deal with flexible working requests in a reasonable way and not to reject them without a business rationale. There are few jobs that cannot be done more flexibly today and a family friendly workplace is likely to be seen as a more attractive option, encouraging better retention rates and loyalty. Special care should be taken to avoid claims under discrimination legislation as disputes around flexible working frequently arise following periods of family friendly leave.
- Sickness – Handle sickness issues sensitively, both while an employee is off work and when they return. Be aware of disability discrimination legislation and the need to make reasonable adjustments for employees with disabilities. Disability discrimination is among the most frequently issued claims within the employment tribunal and many such claims are linked to a lack of understanding and/or action on the part of employers.
- Redundancy – Ensure that there a fair and objective selection criteria is used and that employees are considered for redeployment if possible. Employees who feel hard done by during a redundancy process are the most likely to issue claims, being published and transparent in consultation and having objective criteria for the scoring will frequently serve to mitigate that risk.
- Grievances – Grievances should be dealt with and documented. However small a grievance is deemed to be – it should not be ignored or dismissed. A grievance, raised either formally or informally, is an early indication of a problem. Dealing with these problems effectively could prevent a dispute from developing.
- Settlement Agreements – A settlement agreement could be a great way to protect your business against a tribunal claim, but caution should be taken when offering such an agreement to an employee. Offering agreements to employees outside of protected or without prejudice conversations could highlight unfair treatment.
- Take HR and legal advice early – The cost of using HR and legal services could be far cheaper than the costs of defending a tribunal claim. Based on our experience, most situations can be resolved at significantly lower risk levels if advice is sought from an expert.
How can we help?
Prevention is certainly better than cure especially as defending an employment tribunal claim can have a big impact on businesses. Despite the best efforts of those involved, employment tribunals can become a business reality and when faced with a claim it is best to take them seriously from the outset, regardless of your opinion on the claim’s substance.
Our team at Brachers has specific expertise in defending tribunal claims and our success rates attest to our longstanding experience. Contact the employment team if you are facing a claim or want to discuss ways of avoiding claims.
Employment Tribunal Workshops
Brachers held two workshops on a step by step guide to what to expect during the employment tribunal process. Part one explored the paperwork and procedures pre-hearing and part two focussed on the hearing itself from the layout of the tribunal to the decision and appeals process.
Copies of the slides presented can be downloaded below:
This content is correct at time of publication
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