MANAGING OR MINIMISING THE RISK OF EMPLOYMENT CLAIMS
Last week ACAS published its 2018-19 Annual Report, which highlights the demand for their early conciliation services. Following the Supreme Court decision abolishing tribunal fees in July 2017, the demand for the ACAS early conciliation service has continued to increase.
By way of a reminder, before a claim can be registered at the Employment Tribunal, the employee / ex-employee or worker / ex-worker will generally need to apply to ACAS to partake in early conciliation to see if the ‘dispute’ can be resolved without the need to register a claim with the Employment Tribunal.
According to the ACAS report, early conciliation rose by over 20% compared with last year, with 133,000 requests for Early Conciliation (of which 2.9% were requested by the employer). Tribunal claims were subsequently presented in just over a quarter of them (26.8%).
When Claimant’s had to pay a Tribunal fee, the number of Tribunal claims radically reduced, but now that the requirement to pay a fee has been abolished, it is clear that employees / workers are prepared to exercise their rights.
An alternative interpretation is that the ‘compo culture’ is back on track following a little blip. Employees / workers are readily prepared to threaten a claim before the Employment Tribunal; and this is evidenced with the increase in number of Early Conciliation claims being processed by ACAS.
Whilst there is always a potential for an employee to ‘try it on’, by taking a few simply actions, you should be able to minimise the risk of being taken to an Employment Tribunal, or give yourself the ammunition to defend a Tribunal claim, or to assist with talking to ACAS, as part of Early Conciliation, to try and persuade the Claimant from pursuing a claim.
TERMS AND CONDITIONS
- Ensure that every employee has been issued with a Principal Statement setting out their main terms and conditions of employment. Ensure that it contains all the legally required provisions. Retain evidence that it has been issued (by obtaining a signed copy of the Statement or a signed receipt from the employee).
- If you have a handbook, ensure that every employee has signed a document to state that they have read, understood and accept to be bound by the contents of the employee handbook.
- Have established, legally compliant, disciplinary and grievance procedures, (contained in your handbook) which employees know about.
- Have a clear, open and transparent policy on pay.
- Ensure employees are being paid above the National Living Wage / National Minimum Wage
- Ensure that workers are receiving their statutory entitlement to holiday leave.
- Ensure that holiday pay is calculated correctly – where workers receive commission, bonuses, or work overtime, you need to pay holiday pay based on an average of their pay over the previous 12 weeks.
- Ensure employees / workers’ hours are not breaching Working Time Regulations (e.g. 48 hour limit) and ensure that employees / workers are receiving their statutory breaks/rest periods
FAMILY FRIENDLY POLICIES
- Be aware of your obligations regarding Maternity Leave and Pay; Paternity Leave and Pay; Parental Leave and Shared Parental Leave / Pay, Adoption Leave and Pay, Dependent Leave; and sick pay.
Discipline / Dismissal
- Before taking any action to discipline / dismiss an employee, you should follow your procedures fully.
- Never dismiss staff on the spot – no matter how grave their alleged Conduct, there is still a procedure to follow.
- Ensure that Managers know the procedure specifically the need to:
- Investigate the conduct / capability fully;
- Invite to a disciplinary hearing, setting out the allegation and offering the right to be accompanied;
- Conduct a disciplinary hearing, listening to what the employee has to say in response to the allegation.
- Communicate the decision of the hearing to the employee; and if applicable offer the right of appeal
- If applicable, convene an appeal hearing
- Ensure that there is a genuine redundancy situation.
- Ensure that Managers know the procedure, specifically the need to consult.
- Ensure that any selection for redundancy is based on criteria that is non-discriminatory, includes objective criterion; and is scored fairly.
- Never ignore an employee / worker’s grievance – the employee/worker has an issue that needs resolving.
- Ensure that Managers know the grievance procedure.
- Ensure that Managers use procedures (specifically discipline and grievance) consistently and fairly.
- Be fair in your dealings with all staff.
- Keep staff informed as to any changes that could affect their working practice.
HEALTH AND SAFETY
- Provide a safe place of work and adhere to your obligations under Health and Safety.
- Have an Equal Opportunities Policy and monitor equal opportunities to ensure that you do not directly or indirectly discriminate during the recruitment process or during the course of employment on grounds of sex, race, disability, age, religious belief, sexual orientation, gender re-assignment or marriage of civil partnership.
WITH THE POTENTIAL THREAT OF TRIBUNAL ACTION, YOU ARE ADVISED TO SEEK PROFESSIONAL ADVICE, WHICH CAN BE PROVIDED BY
In summary, to be in the strongest position to defend a claim, ensure that all your records and documentation is in place. Then strive for consistent and even-handed application of the rules and policies. Finally, always take advice on matters. That 10-minute call could just prevent you ending up in Tribunal.
And finally, remember that if you receive Tribunal papers - act promptly, seek professional advice, and ensure the defence / response is submitted within the 28-day timescale. To put things in context, the Employment Appeal Tribunal upheld a Tribunal decision not to accept an unfair dismissal claim which was presented 88 seconds late.
Failure to adhere to the above could be very costly!