Most companies will, at one time or another, experience the tribunal process. Successfully navigating this complex and potentially costly area of employment law can be problematic. For an SME, it can be especially daunting and often financially crippling. The aim of this article is to dispel a few myths surrounding the process and to provide an overview guide for the smaller business owner. While certainly not claiming to be exhaustive, it is hoped that the guide will help small and medium-sized businesses navigate the tribunal’s process more effectively. And to emerge from the process equipped with more knowledge of this thorny area.
While a tribunal will always be keen to see fairness, it will acknowledge a company’s right to manage its staff and to do so within the confines of its finances. However, the process can often be fraught with issues which can basically boil down to the high emotion of the process. This emotion can be demonstrated by both ‘sides’, which is why it is vital to keep an eye on the practicalities of the process and not to become too distracted by subjective opinions.
Sometimes we speak to businesses who could have avoided the morass of the tribunal’s process by following a few straightforward rules. Surprisingly frequently tribunals can be avoided by following a few basic checks:
- Try to work it out first. It’s vital to deal with matters as they arise. One of the most difficult areas in which to manage people is performance. It is sometimes hard to look someone in the eyes and tell them they are not doing their job well. If though, a piece of work is sub-standard, for example it has led to a client complaint, then it is easy to raise the issue there and then. The evidence will be in front of the employee and they usually take on board what management are saying.
- Communication. Accept that where there is a breakdown in communication, at least at the first instance, there is often blame on both sides. The person giving the instruction may not have spoken clearly; the person receiving the instruction might not have been listening properly.
- If faced with a failing or hostile employee, management should come out in a favourable light. It is not necessary to win the ‘did / didn’t’ argument. Rather it is vital to try to rise above it. This will often diffuse the situation.
If all else has failed and a tribunal is inevitable, preparation is all. It is vital that all relevant witnesses are spoken to in order to get to the root of the issues. Your expert will get to know where your case is strong and where it is not.
Along the course of the tribunal’s process, the following pointers should be borne in mind:
- Build up a paper trail – including emails and meeting notes. When the employee then claims that they have suffered a history of abuse and unfair treatment, the documents speak for themselves.
- Remember that in cases of misconduct the case needs only to be proven on the basis of ‘reasonable belief’ rather than ‘beyond reasonable doubt’ as in criminal cases.
If matters do have to reach the formal stage, follow the applicable ACAS Code. Crucially, it is about ‘the rules of natural justice’. Allow the employee to answer back and take account of what is said. Speak to other people who might have worked with the employee.
A manager, who offers the opportunity of continued employment in a final written warning, looks impressive before a tribunal. A warning which says ‘we could have dismissed based on this event, but would like to give you a last opportunity to remedy matters’ will give good grounds for defending an unfair dismissal claim should there be a second default.
In a redundancy situation, again, the reasonable approach to the employee’s concerns always pays dividends. So long as the tribunal can see that you have genuinely applied your mind to the issues, the redundancy is unlikely to be unfair. A good way of doing this is to set out your reasons for your provisional decisions and invite the employee in writing to question and query these in the forthcoming redundancy meeting. There can then be no argument that consultation didn’t take place. Importantly, by having followed the process, the employee is more likely to feel that they were able explore all avenues internally and will be less likely to seek a legal challenge.
Most tribunals settle early, and that can often be the cheapest option. If that is what you want to do then we can quickly negotiate, settle and keep your costs low. But sometimes that is not the best option for your business – it may send completely the wrong message to other employees. Sometimes you have to fight the case to prove a point.