How do Employers Reduce their Risk of a Tribunal Claim?
Steps to avoid a Tribunal… (reducing the risk, we cannot eliminate it!)
With the removal of Tribunal fees, the courts are reporting a three fold increase in Employment Tribunal claims coming through. These are set to increase. So how do employers reduce their risk of a Tribunal claim?
Have you reviewed your recruitment and selection practices. Do you know what the value set of the company is so that you can match that to the value set of the potential employee? Have you got effective questioning techniques? Do you use a comprehensive selection process or expect to get the right candidate after a 30 minute interview? If you don’t get your recruitment right, you might not get the right employees.
Most companies have a probation policy. Few managers really use it well. It is there to support new employees, and identify potential problems early. You can then find a way to solve those potential problems and help the employee to perform in the most appropriate way.
Good performance management is all about regular conversations and open and honest feedback. If you get it right, you will want to keep your employees. However, if they aren’t performing, probation is there for a reason.
It doesn’t take a genius to manage people well. You may not be best friends with every employee but they are all individual people. Take a walk in their shoes. If something isn’t going well, the best thing to do is to speak to the individual and ask why. Communication should never be underestimated. Good quality questioning in a non threatening environment will often elicit information that can help you support someone to get back on track.
Every company should have at the very least a good discipline, grievance and capability policy. Make sure all your managers understand those policies and all your employees have seen them. That way you can use them if you have to. We all have boundaries, and if someone steps out of line, the processes are there to be used. ACAS also has really good guidance. It is free and every employer should be knowledgeable having read it.
Company handbooks are really valuable. They should set out what is expected and how you will manage your teams. Off the shelf documents are not always helpful. You should ensure your handbook reflects you as an employer. That way you know you have been as clear as possible about how employees should behave.
Back to honest conversations. If something is wrong, don’t ignore it. Have the conversation. Make notes. Find solutions. If you need to act, do it and don’t be afraid.
Ensure you react and manage employees in a consistent way. Sometimes we like some people more than others, and that can impact on our objectivity. If you might not be objective, you are better to run your concerns by someone else.
Look at how you have reacted before in a similar situation previously. If someone else had behaved in the manner you are concerned about, would you have responded in the same way? Are you clear where the boundaries are and do all your employees understand them?
Individuals cannot claim unfair dismissal before they have 2 years’ service. This is the most common type of claim. If you have followed the steps I’ve mentioned, you will rarely be considering terminating the employment of someone with more than 2 years’ service unless it is for one of the 5 fair reasons to do so:
- a reason related to an employee’s conduct
- a reason related to an employee’s capability or qualifications for the job
- because of a redundancy
- because a statutory duty or restriction prohibited the employment being continued
- some other substantial reason of a kind which justifies the dismissal.
And that they acted reasonably in treating that reason as sufficient for dismissal.”
Be aware that with less than 2 years’ service, employees may have other legitimate claims such as discrimination, breach of contract or whistleblowing. If in doubt, take advice.
Occasionally an employee is such a risk to the success of the business that removing them is the right thing to do, even if it costs an initial financial outlay.
Settlement agreements can be used to preclude the majority of claims. It may cost the company up front, but we see companies that are far more successful having removed an individual sometimes…
If in doubt, ask. Advice is there if you need it. It’s always worth talking through the options.