Five simple ways to reduce your chances of being taken to an employment tribunal

An employment tribunal claim is always a worry for employers but you can go a long way to reducing your chances of legal action by being proactive and not ignoring issues once they arise, says David Sowle, managing director of SowLegal

Five simple ways to reduce your chances of being taken to an employment tribunal

A business-owning client of mine, Declan, had to pay a former employee, George, £21,000 because he didn’t sack him. OK, so I’m being a little bit poetic with the full facts but, in essence, if Declan had sacked George at any time in the year before George resigned he wouldn’t have had to pay him a penny, let alone the £21,000 the employment tribunal ordered him to after George brought a successful unfair constructive dismissal claim.

Like many employers, Declan had failed to grasp the nettle and it cost him dear. In essence, George was an extremely affable and skilled engineer who was useless at servicing HGVs. Declan, who owned a transport company, put up with George’s incompetence for a year because he liked him and didn’t want to put him out of work. Then, a week after the anniversary of being employed at the transport company, George drained the oil out of a lorry he was servicing and then found he had ordered the wrong oil filter for it. Declan berated him colourfully and at high volume and George walked out.

The tribunal said that George’s incompetence had presented Declan with numerous opportunities to manage his underperformance, opportunities he had failed to take. George was entitled to be told about his shortcomings and be given an opportunity to improve or be dismissed fairly if he didn’t. What Declan did wrong was consistently avoid criticising George’s work before ambushing him with a tirade. That wasn’t fair or reasonable. Declan was a nice man but he was a bad employer.

Here are five ways to avoid being a bad employer and by bad employer I mean an employer who is going to end up in an employment tribunal:

1. Deal with performance issues 

This is what got Declan into difficulty. Don’t wait until you’re climbing the walls before you manage an underperforming employee’s performance. Remember, in most circumstances, the current law gives you two years to dismiss an employee before they can bring an unfair dismissal claim.

Ensure that performance appraisals are carried out regularly and taken seriously. You will not be helping yourself or your employees if you, like most employers, invariably score them full marks and a smiley face in every appraisal. Firm but fair is the best policy.

2. Don’t ignore grievances

You will, or should have, a company policy setting out how you will deal with any grievances your staff raise. If an employee is unhappy at work, even if you’re not sure whether they want to raise a grievance or not, don’t ignore it in the hope it will go away. Find out what the problem is, find out if they want to raise a grievance and, if they do, deal with it. 

Make sure you deal with all the points raised in the grievance, don’t expect things to go away if you ignore them and do so as quickly and efficiently as possible. Employees have a contractual right to have their grievances dealt with properly; any failure to do so will allow them to resign and have a tribunal award them a lot of money.

3. Don’t get phased by employees going off sick with stress when you try to discipline them

When you hand an employee a letter inviting them to a disciplinary hearing, 75% of the time they will immediately head to their GP and get signed off sick with work-related stress. Don’t let them wrong foot you.

Just because the employee has a fit note from their GP saying they are unable to attend work doesn’t mean they can’t attend a one-hour meeting and answer a few allegations about their conduct. Remember: the best way to relieve stress is to get rid of the cause of that stress. Get the disciplinary hearings over and done with and move on.

4. Clamp down on office banter

Sooner or later someone is going to say something that will be the basis of a discrimination claim and when they do it will be you, the employer, who’s going to get sued.

It is very difficult for an employer to get out of being liable for what one of their employees says to another. One minute everyone is laughing, the next there’s an implosion of silence and the smiles drop. Ensure that your staff are aware of what’s acceptable and what’s not. Keep on top of office banter; no good will come of it.

5. Make sure you stick to company policies

Company handbooks are a bit of a must-have these days. Not only that but there seems to be a culture of making them as long and inclusive as possible. The problem with that is that, if you have company policies and then fail to follow them, you’re going to get yourself in difficulty.

The bigger and more complicated your company handbook, the less likely it is that your staff will read and implement it. If you have a handbook, try and keep it as short and uncomplicated as possible and then ensure it is distributed to, and read by, all your line managers. Not following your own company policies and procedures is a free hit for anyone wanting to take you to a tribunal. 

This article comes courtesy of Sowlegal, the employment law firm.


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