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Sunday 26 February 2017

How to avoid being taken to an Employment Tribunal

Mon, 25 Jan 2016 | By Sue Ingram
Sue Ingram

As a recruitment professional you’re often also regarded as an HR expert too. 

Although this isn’t really a fair assumption and can put a lot of pressure on you, it can be useful to understand the basics of employment law, so you can point your clients in the right direction but also to ensure that you, as an employer yourself, don’t fall foul of the law and end up being taken to an Employment Tribunal.

Employment law can appear complex and tends to make managers nervous but actually, at its core, it is quite simple, straightforward and based on common sense.

When Employment Tribunals were first introduced the idea was that lawyers would not be needed. Unfortunately, one side hired a lawyer, then the other and now few companies attend without legal representation. 

Consequently the costs in both time and money can be very heavy. It is therefore best to do what you can to avoid having a case appear before a tribunal.

Below are the three simple, common sense criteria you need to understand. These are what an Employment Tribunal would assess a case on. Many employers end up in a tribunal, not because firing the person was the wrong thing to do, but because they didn’t do it in the correct way. So be sure you follow the three points below:

1) Were procedures followed?

Did the employer act in line with their own policies or procedures or, if they did not have any procedures in place, did they act in line with the guidelines set out by Acas?  

A manager can be correct to dismiss an employee but if they did so ignoring their own company’s policies then an award will be made to the individual.  

Know your own procedures or visit the Acas site. If confused by what you read, then challenge and ask until you fully understand.  

2) Did the organisation behave reasonably?

This is a hard one to prove or disprove. After all, what one person would consider to be a reasonable action another might not. 

Again, you can be right to dismiss but do so in an unreasonable manner and an award will be made to the employee. Therefore it is important to calmly consider each action you take throughout any formal process. As the manager of what can often be an emotionally charged situation it is extremely beneficial to discuss the case with objective professional advisers who are experienced in such situations. And always check with yourself, ‘Would someone outside looking in consider this action to be reasonable?’ If you find yourself hurriedly justifying the action using the word ‘but’, think again.

3) Balance of probability

As an Employment Tribunal is not a court of law, there is no requirement to prove a case beyond reasonable doubt. After all, the only risk is a limited sum of money, not a criminal record or imprisonment.

So all an organisation is required to prove is that the individual was culpable on the balance of probability and they are then free to dismiss; remembering that it would be reasonable to conduct an objective investigation before taking such action. It might be of value to include this fact in your written polices as some employees are acting under the misapprehension that evidence beyond reasonable doubt needs to be supplied.  

So there it is. Three simple steps to employment law. But the best advice of all? Be a strong, clear and communicative manager. Train, gain a mentor, learn about the art of managing people and thereby avoid ever having to stand in front of an Employment Tribunal in the first place.

Sue Ingram is author of ‘Fire Well, how to fire staff so they thank you’ and founder of Converse Well, a training company which provides workshops for managers in how and what to say when managing and firing staff.

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