Why Good HR Procedures Are Your Best Defence Against Claims
HR Procedures: At New Dawn Resources, we guide our clients through difficult employee issues with two key objectives in mind. First, to make sure that everything is done fairly, balancing the needs of the business and the individual. Second, to reduce the risk of our client incurring the costs and stress of defending an Employment Tribunal claim.
So, what can employers do to reduce their chances of a claim?
To some, it may feel as though employment law is just too big to get to grips with. Our laws come from legislation, which is supplemented by statutory instruments and interpreted by case law. We often see headlines about significant cases or proposed new legislation, which make it feel as though our laws are constantly changing.
It may help employers who feel a bit overwhelmed to bear in mind that the underlying goal of employment law is to ensure that employees and workers receive fair treatment. As long as employers act reasonably and treat their staff fairly, they should be able to reduce the risk of a claim from an unhappy employee. The HR procedures that we follow with our clients are based on these principles of reasonableness and fairness.
What does a good HR procedure look like?
Principles of natural justice, employment legislation and the ACAS Code of Practice give us some guidance on good HR practice, the core components of which are:
- The employer should take reasonable steps to identify the facts at an early stage without unreasonable delay – for example, in a disciplinary procedure they should carry out an investigation to determine what is likely to have happened and identify the allegations, in an absence management procedure they should monitor absences and explore possible underlying reasons for high absence rates.
- The employee should be advised in writing of any complaint or concern they need to answer – for example, in a disciplinary procedure they should receive written notice of the allegation against them, or in a performance management procedure they should receive written notice of the standards expected of them and where they have fallen short. In all cases, they should receive copies of any information relevant to the complaint or concern.
- The employee should be invited to a hearing where they have an opportunity to respond to the complaint or concern. The invitation should be in writing with clear information about the arrangements and what is to be discussed. If one possible outcome is dismissal, the employee should be informed of this so that they understand the seriousness of the process. The employee should be given reasonable notice of the hearing so that they have time to prepare and they should be advised of their right to be accompanied.
- In most cases, an employee should have a minimum of two warnings before dismissal. However, it may be appropriate to jump to a final warning where the situation is serious or to go straight to dismissal in a disciplinary procedure involving gross misconduct. The decision must be reasonable bearing in mind the seriousness of the complaint or concern against the employee, the employee’s length of service and record, actions taken in similar circumstances with other staff and the employer’s size and resources.
- Once the decision is made, the employee should receive written confirmation of the outcome of the process, with an explanation of the decision made and information about their right of appeal.
When does it go wrong?
In our experience, most employers have good intentions when it comes to their staff. However, things can and do go wrong.
One of the most common scenarios we deal with is where a manager has tolerated poor behaviour, performance or attendance for a long time and has reached the point where dismissal feels like the only solution to them – but they either haven’t taken any steps to address the issues with the employee or the steps taken are informal and undocumented. A dismissal in those circumstances comes with an increased risk of a claim and so, to ensure fairness and manage risk, we work with the manager to implement good HR procedure which can take a bit of time. To avoid this, we recommend starting formal procedures at an early stage and keeping a written record of everything.
Another common scenario is when an employer applies the same rules to their workforce, which on the face of it feels like fair and equal treatment but could cause indirect discrimination. It is important to keep an eye out for rules which might put some members of staff at a disadvantage due to a protected characteristic – such as gender or disability.
For example, a rule that all staff must work full time might put women at a disadvantage as they are often the primary carer for children or family members, or a requirement for a driving licence might put someone who doesn’t have a driving licence because of a health condition such as epilepsy at a disadvantage. This doesn’t mean that employers can’t have these rules – but they may be required to demonstrate why they are necessary. To manage risk, we recommend reviewing rules and procedures regularly.
Finally, we occasionally see situations where an employer has underpaid a member of staff. We all work to live and rely on our income, particularly in these difficult economic times. Although an underpayment is usually caused by genuine error, it can cause financial distress and significantly harm the working relationship, leading to a grievance or even a claim. There are some simple things to look out for.
- An employer cannot make a deduction from pay (for example to recover the cost of repairing damage caused by an employee or recovering the cost of training) unless this has been clearly authorised in advance, usually by a clause in the contract of employment.
- An employer cannot dismiss an employee (other than for gross misconduct) without giving notice that is the higher of the notice set out in the employee’s contract of employment or the statutory minimum notice. The statutory minimum notice period is one week of notice for each full year of continuous employment up to a maximum of 12 weeks for 12 or more years of employment.
- When dismissing an employee for redundancy, the employee is entitled to their notice AND statutory redundancy pay. These two payments are often the same amount, which can cause confusion and result in only one payment being made.
What do we recommend?
Talk to us! Or do a bit of research. There are good resources online, but make sure that what you’re looking at is based on the laws in England and Wales (not Scotland, Northern Ireland or somewhere further away) and make sure that it is up to date. ACAS is often a good starting point.
Follow these links for more information about the Employment Tribunal process and ACAS early conciliation:
This is about ACAS early conciliation:
How the process works – Early conciliation – Acas
This is a practice direction for Tribunal users about putting in a claim or response:
This is a practice direction for Tribunal users about hearings:
14-Sept-2020-SPT-ET-EW-PG-Remote-and-In-Person-Hearings-1.pdf
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