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Tribunal Top Tips – Part 2

Following on from my post last week, in which I set out some thoughts to consider when dealing with tribunal litigation, I have collected below some practical tips gleaned from tribunal hearings which it may be helpful to bear in mind when dealing with day-to-day HR issues.  Some may seem obvious; many are things you will be doing already, but it's been interesting to see that whilst we as lawyers and HR practitioners often focus on the more esoteric thorny issues, tribunals are frequently concerned with whether day to day practices are properly implemented, and with the general hygiene of the employment relationship.   They may be minor points and a case may well not turn on any one of them, but if you can ensure consistent good practice on these issues, you are likely to be better placed successfully to defend claims which may arise:

1. As far as possible, keep a record on your employees' HR files that they have received relevant policies (such as equal opportunities and health and safety) and of training courses attended (including notes of the training and dates of attendance). Tribunal panels will be interested to know whether a witness is aware of the employer's policies and what training they have been provided with for implementing those polices; whether that is training on how to conduct disciplinaries/grievances or equal opportunities training. It is vastly preferable that any manager chosen to conduct a disciplinary/grievance procedure has received equal opportunities training: it is often one of the first questions asked of a witness.

2. With regard to recruitment processes, managers should have defined criteria/metrics for assessing candidates; ensure that each candidate is assessed according to only those criteria/metrics and that records are kept of each candidate's results. In addition, records (even if brief) should be kept of the rationale for selecting a particular candidate over the others. In the event that you receive a claim from an unsuccessful candidate, this evidence can be vital in showing that the decision was not discriminatory.  Don't go overboard – as with all notes, they can be a double edged sword: keep them short and factual and ensure that managers are trained in understanding the parameters of what to record (and how to record it). 

3. Make the most of the probationary period. This is a unique opportunity to assess a new employee's ability to be successful in the position. Ensure that there is a process in place to monitor any recommendations made for the improvement of an employee's performance and address any issues in a timely fashion.  Many have questioned the value of probationary periods in the context of the increased qualifying service period for unfair dismissal claims – but they retain at the very least a psychological benefit as well as a clear opportunity to assess suitability.  But allowing employment to drift on post-probation without confirmation one way or another (or having a policy/contract which refers to a specific probationary period but without a mechanism to confirm successful completion so that the employee is able to argue that they have in fact become permanent without any specific approval by the employer) is unlikely to impress a tribunal.

4. If you are going to come to an arrangement with a member of staff that is a departure from the norm (for example, agreeing to a period of leave of absence or agreeing to vary their probation period), this should be clearly recorded. The decision maker should make a short note, explaining the reason for the arrangement, and put a copy of it on the employee's HR file. That way, should the employee subsequently claim that they have been treated differently, you can evidence the reason for any different treatment, which can prove particularly difficult in cases where the decision maker has since left.  Make sure all such notes find their way to the main HR file – it can be a nightmare further down the road having to collate different documents from different people, without knowing quite how much material may be out there.

5. In some circumstances, where issues overlap, it will be appropriate to deal with a grievance as part of an on-going disciplinary procedure. However, if you do so, you need to be particularly careful to evidence the fact that the grievance has been considered properly. You want to avoid it appearing to a Tribunal Panel that you have not taken the grievance seriously. Ensure that each point raised in the grievance is considered during any meeting and that this is documented in the minutes. It would also be advisable to produce a separate outcome letter for the grievance addressing each point raised in turn. In general, where grievances emerge during or at the same time as a disciplinary procedure is on-going, it makes sense to take stock of the issues – can they be separated, are they fundamentally intertwined? – and clearly evidence why you have decided to adopt the approach you have, be that delaying the disciplinary in order  first to address the grievance, or combining the two.

6. A common trend seen in cases, where an employee is particularly demanding, is that HR/management is patient in dealing with that employee for a while, often being particularly accommodating to their demands, before they eventually snap. Commonly, at that point, mistakes are made in the handling of that employee. This is particularly problematic where the employee has raised concerns about discriminatory treatment or blown the whistle – a precipitous reaction in these circumstances can expose an employer to claims of victimisation and/or whistleblowing. Be mindful not to let employees get away with excuses that other less difficult individuals would not get away with. Handle them robustly and fairly from the start, instead of patiently accommodating their demands until you snap.  Be consistent.

7. Where there are concerns about an employee's conduct or performance, these should be addressed early on. All too often (and it is entirely understandable!), tough decisions are deferred until it becomes increasingly difficult to deal with the problem. As an employer, you want to send out a consistent message that certain types of conduct or poor performance are not acceptable. If you do not tackle such issues head on, you send out a confusing message to your staff, risk undermining your culture, and any implied acceptance of such behaviour will make it harder to address later.

8. It is not uncommon for embarrassing or unfortunate emails to come to light during disclosure.  Some may even fundamentally alter the merits of your defence.  It is therefore very helpful to speak in person to each member of staff who is involved in on-going internal procedures, at an early stage, and remind them not to discuss the matter over email.  Repeat the message frequently!

9. Finally, remember that the strength of your case at Tribunal will be hugely reliant on the documentary evidence you have to support it. It is extremely important that decisions and the rationale for those decisions are clearly set out in writing. Without descending into paranoia, you should always be mindful of the possibility of future litigation occurring and take responsibility for maintaining a paper trail. It is not uncommon for employment tribunal claims to be initiated in relation to situations that have been on-going for some time. For example, a claim in relation to dismissal for long term sickness absence may relate to a history of years of ill health absences. Several members of HR/management may have been involved in dealing with a particular employee over the years. Unfortunately, in many cases where individuals have saved documents/correspondence into personal folders or onto their desktops, these cannot be retrieved once they have left. It is therefore very important to make sure that documentation is stored properly and easy to find.

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