Quest’s tips on how to avoid an employment tribunal

24 Sep 2019

Business

Most claims stem from a Company misunderstanding or otherwise not being fully aware of employment legislation, such as the Working Time Regulations (1998) & The Working Time (Amendment) Regulations 2007, The Employment Rights Act 1996 and The Equality Act 2010. In addition to employment law, employers must comply with the ACAS code of conduct, which sets out fair and reasonable employee relations processes to be followed. If you don’t know and understand all of the legalities and how they may apply to your business, then you can’t possibly be sure that you will comply with them. Getting to grips with these laws can be tricky and time-consuming, so many businesses find it useful to engage the provision of training for their senior management or work with a HR consultancy firm who can get to know your business and help you identify, and reduce, any compliance risks.

More claims are raised for issues relating to working hours than any other sort of claim, so understanding in particular the Working Time Regulations, including break requirements, maximum working hours, minimum rest time and rules for night shift workers, as well as holiday entitlement rules should be considered a priority.

Employee handbook

Being aware of the law and the code of conduct is one thing but following them is another. Another top cause of employment tribunal claims is the employer failing to follow a fair process, which may result in an unreasonable decision such as unfair dismissal. In addition to undertaking training on managing HR processes, employers should have compliant policies set out within an employee handbook which ensure that they, and their staff, have a full understanding of what the fair process to be followed is. By having, and following, fair and compliant policies, employers are less likely to give an employee either cause or grounds for a claim against them.

Contracts of employment

The Good Work Plan reforms, expected to come into force in 2020, stipulate that employees must have a written contract of main terms and conditions of employment by the date their employment commences. Even before then, employers are best advised to have written statements of particulars to avoid the ambiguity, contention and therefore potential employment tribunal claims that can result from only having a verbal contract or implied terms. Having a written contract, which is legally compliant, therefore helps prevent employment tribunal claims. Employers who are defending a claim could be penalised by a further £1800 if they have failed to issue the employee with a written contract on time.

Equality and Diversity

Recent case law has held employers vicariously responsible for employees’ discriminatory actions where they have failed to adequately train staff. The Equality Act 2010 allows for claims to be brought against companies not only by their staff, but also by customers, contractors and job applicants. It is therefore important for businesses to have policies in place to reduce the risk of them, or their employees, discriminating against or harassing anyone. This includes giving equal opportunity to all, regardless of ability, to work for, purchase from or engage the services of the business.  Companies may find it useful to engage Equality & Diversity training for their staff or management teams and engage with a HR consultancy to help them identify, and reduce, any compliance risks.

Employers are advised to have, and follow, policies on the promotion of Equal Opportunities, the prevention of bullying and harassment, and sound processes to ensure equal opportunity through recruitment and training processes.

Employee disputes

Most employee disputes can usually be attributed to poor, weak or inexperienced line managers. Having effective managers and leaders within the business will help prevent staff from feeling aggrieved, and where disputes do arise such managers will be better equipped with the skills to resolve these quickly and effectively. Providing line management training is an effective way to achieve this.

Where disputes cannot be resolved informally, a fair grievance process should be followed according to the ACAS code and as set out within the employee handbook. This process provides a formal framework for resolving disputes within the Company, rather than there being a need for raising a claim with a tribunal.

Conciliation

Where disputes cannot be resolved ‘in house’ employees may raise a claim through ACAS, but this still does not mean that a tribunal hearing is inevitable. ACAS will attempt to provide a conciliation service to encourage the employee and employer to resolve the dispute out of court. Conciliation can make it easier for employers to get their message across, but also provides a free impartial broker for negotiating a settlement to any claim. HR consultancy can also conduct conciliation on behalf of the Company.

Legal protection

If conciliation does not resolve the dispute the claim will normally go to an employment tribunal. Legal fees for defending the case, whether it goes to court or is settled before hand, could cost as much as £8000, rising to £12000 upwards when it is heard and more if it runs into more than one day. Some businesses have insurance to cover both the legal fees and any awards the tribunals offer. This contingency will help protect your business from having to pay an unbudgeted one-off cost that could otherwise severely hinder cash flow and therefore impact on business operations.

 Action checklist

  • Ensure you understand, or have the third party of advice of someone who understands, how employment legislation applies to your business. Ensure legal compliance.
  • Ensure you understand the ACAS code of conduct and how to follow fair processes. Engage training if required.
  • Ensure you have legally compliant employment contracts and handbook.
  • Ensure you keep up to date with legislation updates which may impact upon your business.
  • Ensure you’ve provided management and staff with Equality & Diversity training, to reduce risk of harassment and discrimination.
  • Ensure you take sound HR advice in the case of an employee conduct, performance or absence issue, or if you receive a complaint from a member of staff. Seek advice as early as possible to help you follow the ACAS code.
  • Review your employer insurance to see if this covers legal costs and awards/penalties for potential employment tribunal claims.

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