November 18th, 2012
If you want to minimise the risk of successful employment tribunal claims do:
- Be clear about the employee’s role and responsibilities. A written job description prevents many a misunderstanding.
- Be clear about who the employee’s line manager is
- Have a written contract of employment and ask the employee to sign it. If there is no written contract, the tribunal will have to decide what the terms are on the evidence presented to it. This is a waste of time and you may not get the answer you want
- Be clear about the standards you expect employees to meet
- Tackle poor performance early and informally to start with. You may even sort matters out!
- Have written disciplinary and grievance procedures and ensure they comply with the Acas Code 2009 on discipline and grievance. This is a legal requirement and if you don’t follow the Acas Code you risk a compensation uplift of up to 25% if the employee wins their claim
- Make sure you follow the Acas Code 2009 procedures if the employee has sufficient service to bring an unfair dismissal claim. Remember there is no service requirement for some dismissals, for instance those related to discrimination (sacking an employee because she is pregnant) or for whistleblowing. Many a claim succeeds when it shouldn’t simply because the employer has not followed the correct, legal procedures
- Document everything! If you don’t have the written records to show you’ve had the performance etc meetings with the employee where is your evidence to show that you did? Yes, this can be tedious but it is an essential stitch which really will save you time and money in the long run.
If you want to minimise the risk of successful employment tribunal claims don’t:
- Ask an employee to resign or give them the choice to do so when they know the alternative is being dismissed. Either scenario is a dismissal in law
- Hope that poor performance will magically improve. It rarely does and if you haven’t had meetings with the employee to discuss their performance, set targets, offered help and monitored any improvement (or lack of), you will be on the back foot in defending an unfair dismissal claim. The longer you leave performance issues, the harder they are to tackle
- Ask discriminatory questions on recruitment (eg relating to age, religion or child care). Find another non-discriminatory way of asking the question to get the information you need to decide whether the candidate can do the job
- Set yourself up for a constructive dismissal claim by changing terms and conditions detrimentally without consulting the employee first
- Say that a dismissal is for redundancy when it’s actually for poor performance or illness. It’s for the employer to prove the potentially fair reason for dismissal in the employment tribunal and if you get it wrong because you wanted to be “nice”, you won’t be able to do that and you will lose the case
- Allow office banter to get out of hand. Many a harassment claim succeeds because the employer has not tackled “the way we do things round here”. It’s not OK just because no-one has complained – yet
- Stereotype. For instance never recruiting an employee whom you discover has a mental illness or epilepsy
Arran Elkeles. Arran is qualified as a barrister, is a Chartered Fellow of the CIPD and a CEDR Accredited Mediator. She has experience of the public and private sectors and has been running her own consultancy (Kelear Consulting Ltd) advising employers on HR and employment law for the past 7 years. Arran is a Trustee of Mediation Hertfordshire and an Employment Tribunal member.