February 27, 2007

Ten Easy Ways to Avoid Employment Tribunals - UK

...For those employers who have yet to put proper systems in place, the following basic 10 Point advice is essential reading:

Procedures & Systems – Many employers, even major outfits, fail to have contracts, statements of particulars of employment, handbooks and basic policies so when a problem happens, management find themselves flailing around, wondering what to do. Employment Tribunals will automatically mark down any organisation, which has not demonstrated a willingness to prepare a fair working environment. These documents will help managers to react in an appropriate way, for example, through application of grievance and equal opportunities procedures.

Effective Communication – Tribunal cases normally begin with a simple human omission; a junior manager’s failure to report information to personnel has lead to a sense of frustration either about or from a worker. Staff should be trained on their rights and encouraged to come forward and line managers, in particular, need to look out for problems. Regular, short meetings with line managers should keep you in the loop so that you can act. The worst employment case will involve an employee who suffers in silence. Encourage a culture of openness and confidence that issues will be taken seriously.

Proportionality – most legal rights come down to this: is there a problem? and what is a proportionate way of dealing with it? Or, more simply, ‘serious issues should be treated seriously’. If a worker reports a substantial health problem, then you should spend more time on it. A scribbled occupational health nurse’s note on a worker’s suspected serious disability will not be well received by an Employment Tribunal when an expert report is required. Similarly, if sacking an employee for gross misconduct, a botched disciplinary on 24 hours’ notice is unlikely to impress.

A Paper Trail – many employers keep inadequate records. How can you, for example, prove that Bloggsy was warned about his lateness on “too many occasions to mention?” In a World of email communication and itemised phone bills, an Employment Tribunal is simply not going to believe you unless you have a piece of paper proving your point. For legal purposes, if you can’t prove a fact, you might as well abandon it. Keep relevant emails on the worker’s file.

Consistency - if the entire spectrum of employment law could be reduced to one word, it would be “consistency”. An employer, who treats all staff in the same way and, importantly, explains any differences in treatment such as pay or promotion, could avoid most claims. Discrimination, of all types, and unfairness, both have at their root some failure to deal consistently; either by comparison with other internal situations or by objective standards of fairness. Tribunals will draw adverse inferences where there is no clear reason for inconsistent treatment of a worker.

Escalation - The most common criticisms levelled at employers in the Tribunal are: “where are the warnings?”… and… “How did this employee know there was a problem?” Managers have a tendency to avoid raising issues until it is too late for the employee to change. As one CEO recently put it: “ we only warn people when we are sacking them”. Records of regular and clear commentary, especially if fair (in terms of timing and content) will do wonders for an employer’s case.

Timing - One of the big problems with HR management is that you never quite know what is round the corner. That employee who is repeatedly late might suddenly develop a disability, or the poor performer may announce her pregnancy. If there is no record of the problem before the change in the status quo, a Tribunal is likely to believe the employee’s suggestion that you are victimising her for asserting her rights. When there is a problem, act quickly to prevent being wrong footed by events and let the employee know there is a free-standing issue which needs to be addressed. Employment law should not give staff greater rights simply because they have a problem; you should not have to retain an incompetent employee simply because she is pregnant or disabled although, obviously, care will have to be taken to make sure that no risks to health and safety are caused by being over-zealous when she is medically vulnerable.

Training - A Chairman at an Employment Tribunal will usually ask the employer what steps were taken to train staff on appropriate standards of behaviour. It can often be a complete defence for an employer in a discrimination case to show that it instructed staff on standards of equal opportunities leaving the guilty employee as the person to foot the bill for compensation. Training of staff is, without doubt, the best way to avoid Employment Tribunal claims.

Investigations - When a problem comes to light, it should be investigated and records kept. One of the biggest ‘crimes’ is simply to sweep an issue under the carpet, so, when an employee complains of sexual harassment in the pub after work, a response such as: “sorry, events out of work are not our concern”, is unlikely to work. An investigation might establish that you cannot reach a conclusion due to lack of evidence or that the issue is genuinely a personal matter but failure to do anything could be discrimination on its own account. Employers often make the mistake that events outside of work are always irrelevant; this may not be so, if it is relevant to the workplace. An employee who is abused at the pub is unlikely to be able to work for the perpetrator the next day.

Alarm words - certain words should automatically lead you to act and, at the very least, investigate: harassment, victimisation, bullying, pregnancy, stress and whistle blowing are but a few. As part of the training of managers at all levels, focus should be directed at what these words mean in terms of the law and compensation. Whilst your organisation wrestles with difficult employment law concepts, these simple cultural and practical changes could be all you need to keep out of trouble ... the cost of doing nothing at all will be far greater than giving a little thought to the basics.

From: Employersworld.co.uk, by Gordon Turner
Wise words but the issue remains that there is no monitoring, there is no policing and universities (as well as other employers) would rather wear down the victim in a prolonged and protracted legal case than admit that they did not follow the right procedures - even if this is going to cost lots of tax money. There is also no compulsion on (academic) managers to be informed of the above and apply it.

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