Defending an employment tribunal can cost your organisation dearly, in time as well as money. Rebecca Pallot from Mills & Reeve shares best practice guidance on how to avoid being take to tribunal in the first place.
The employment tribunal is a system under significant pressure, with a backlog of 37,000 single claims reported in March 2023.
Defending a claim can now take up to several years from start to finish so employment tribunal proceedings are best avoided if possible!
This article sets out some practical tips on how charities can avoid having to deal with employment tribunal claims.
Common stumbling blocks
There are five stumbling blocks which we commonly see:
- Delays in management raising concerns with employees
- Failure to follow policies properly and consistently
- Failure to investigate complaints properly or in a timely manner
- A limited paper trail
- Issues arising when dealing with employees with protected characteristics.
Practical tips to avoid potential pitfalls
Raise concerns with employees promptly and deal with issues as soon as they arise.
Where issues require management to follow a formal process (for example, a disciplinary or performance management process), it is important for this process to be started as soon as possible because these processes can take time.
For less serious issues where a formal process is not yet required, managers should consider:
- having a confidential, private meeting to discuss the problem (a ‘quiet word’)
- giving a verbal, informal warning
- mediation (this helps to prevent relationships becoming fractious)
- additional coaching or training for managers to know how to deal with issues
If informal actions are taken, employees should be informed that a formal process will follow if the problem persists.
It is important that management remember to always record any action taken (whether formal or informal).
Follow policies properly and consistently.
Policies should reflect the legal framework and ensure a fair process. Therefore, it is important that managers are aware the policies exists and their contents, and that the policies are followed.
In the event that a timescale or deadline given by a policy is not going to be met, this should be communicated to the employee in question.
An important point to note is that with claims for unfair dismissal, failure to follow a policy can render a dismissal unfair, even if you had a fair reason to dismiss.
Investigate complaints properly and thoroughly.
Be clear on the scope of the investigation from the outset to ensure that any complaints are dealt with properly and thoroughly. It may be helpful for the investigator to create a table of information which lists each issue to be investigated, what documents are required and whether there are any witnesses which need to be interviewed for each particular issue.
Specific findings of fact should be made for each allegation, and in cases of conflicting evidence, the investigator should set out who they believe and why.
The investigation report must enable an informed decision to be made as to the outcome of the investigation and any next steps.
An important point to note is that with claims for unfair dismissal, delay in investigating complaints can render a dismissal unfair, even if you had a fair reason to dismiss.
Keep a paper trail.
Contemporaneous documents carry considerable weight, whereas human memory can be unreliable. Therefore, you should ensure that you have accurate and legible records of all types of communication with an employee. If a decision is made verbally, reasons for the decision should be set out in writing to maintain the paper trail.
Be careful about creating unhelpful or damaging evidence, especially as the charity’s internal emails will usually be disclosable during Employment Tribunal proceedings; think about what is being committed in writing.
Remember to store records confidentially and in line with the charity’s record-keeping policy, as well as considering any data protection requirements.
Be live to protected characteristics and understand when discrimination arises.
Ensure managers receive training on equality, diversity and inclusion policies and that the training is up-to-date and carried out with some regularity.
It is common for discrimination issues to arise in the recruitment stage, and so all recruitment decisions should be evidenced.
Ensure any allegations of discrimination are dealt with promptly. It is important that managers give employees who are upset or aggrieved the chance to talk and be listened to, and to then escalate as appropriate.
Key takeaways
- Always assume issues will end up in the employment tribunal so remember to preserve evidence which you may need to rely on later
- Deal with issues in a timely and thorough manner
- Take legal advice early to assist and inform the process