Published: 01 November 2017
Area of Law: Employment
Five steps to ensure you are employment tribunal ready
Back in July 2013 the Government introduced controversial fees for employment tribunals and Employment Appeal Tribunal (EAT), meaning employers could afford to take a robust, “wait and see” approach to employee relations issues. The introduction of tribunal fees slashed the number of claims brought by employees, meaning many employers choose to relax their approach to handling grievance and disciplinary issues, comfortable in the knowledge that for most employees, the level of fees would act as sufficient deterrent to issuing claims.
The decision in July 2017 by the Supreme Court that Tribunal fees are unlawful
sent shockwaves through the HR profession. This decision has numerous and significant implications for employers, employees and users of the Tribunal system but one of the most overt is the need for employers to proactively manage their employee relations issues.
Organisations should have been adhering to best practice around employment practices but it’s possible that HR teams and personnel have changed substantially during the last four years and people’s experiences of tribunals are out of date or rusty. Here we outline five steps employers should be taking to ensure they are prepared:
1. Train your managers
Regardless of the change in tribunal fees, line managers need to be trained properly to ensure they are able to be able to deal with employees in the best way to ensure both employee and employer are covered should a situation turn difficult, whether that be through a disciplinary, grievance or absence management process.
Learning and development budgets were one of the first to be slashed during the last recession and employers could afford to take more of a risk that managers were ill-equipped to handle such issues, when the chances of being scrutinised in a Tribunal forum were so low. That is no longer the case. Managers need to be aware of the changing climate and the risks involved of handling a situation poorly.
2. Support your HR team
Some employers may have endorsed a hands off approach whereby line managers were able to execute decisions without the guiding input from their HR department. Such an approach would be foolish in these current times.
Not only can HR departments provide that all-important advisory role, they also provide the oversight as to how similar issues have been dealt with elsewhere within an organisation, critical for consistency purposes. While the responsibility for line management lies outside the remit of the HR function, ensuring they are able to support their line managers should a situation arise is vital.
You will need to ask yourself questions as to whether your HR team is adequately resourced to carry out an inevitably increasing workload, and how they are perceived by the rest of the organisation (as this may dictate how willing line managers will be to engage and work with HR). Do they see them as a barrier to how they operate, or a useful resource to help them achieve resolutions?
3. Risk asses your recent employee departures
It’s anticipated that dismissed employees may seek to bring claims that are out of time (Zombie claims) on the basis they couldn’t afford the fees.
Auditing your departures over the last four years to highlight those posing risk is an approach being taken by some employers, enabling them to analyse whether they would be equipped to defend such claims in terms of witness and evidence availability.
4. Review your risk appetite
Review your risk appetite for handling and executing employee relation issues, and cascade your approach down to those who need to know. Are settlement agreements, (whereby an employee agrees to waive any claims against their employer) more likely to be used now?
A cavalier approach to implementing procedures, assuming the likelihood of claims is low, is no longer viable. A blanket reliance on outdated policies and procedures, which no longer work in your organisation, is likely to jeopardise your prospects of successfully defending such claims so it would be timely to consider a wholescale review of these.
5. Attend a mock tribunal
Managers and HR professionals may well be out of practice or alternatively never have attended a Tribunal. Familiarity with the process and formality of a Tribunal is not just reassuring for those who may be involved, but also causes them to scrutinise their own actions when handling complex employee relations issues, minimising the risk of hasty, ill thought through responses.
Our employment team have extensive experience of dealing with employment tribunals, as well as working with organisations to ensure your practices and procedures are up date to, with the aim of preventing a case going to tribunal. We can also run mock tribunals for clients to give them the best training and first hand experience.