An Employment Tribunal should be a last resort

10 February, 2020

A very good friend and colleague has always told me that the best outcome for a dispute between an employer and an employee is to have resolved matters without ever having to involve an employment tribunal. He is a highly qualified/experienced HR Consultant and his 100% record of successfully avoiding tribunals is something he is very proud of (Lee Williams). Having spent a very uncomfortable day yesterday in court, I couldn’t agree with him more.

However, there are situations when a tribunal is unavoidable, and to be frank as far as yesterday was concerned there was no option for this particular claimant but to seek recognition that he had been treated very unfairly by someone he had served faithfully for over 8 years. Whilst the outcome will not be finalised for another 6 weeks it is more than likely the judge will find in favour for the claimant. In my experience and from my observations there are 2 reasons why, in my opinion, these parties ended up in court:

  • From the outset the respondent decided he was in the right and did not work with his HR consultants (he had 3 different consultants over the period). No matter how well advised the parties involved are if they choose not to listen to the advice they pay for, the outcome will be a lot less certain
  • Offers made to the claimant during the last 12 months came with a threat of legal action against him should the respondent win the case, if he chose not to accept the offer. It was clear that the respondent felt no responsibility for his actions and albeit the claimant is not the most confident of people the respondent’s threat only fuelled his determination to seek justice. Crazy behaviour!

I won’t go into the specifics of the case because the judgement has to be finalised, but as I was the person who supported and advised the claimant from the very beginning, during his 12 month journey and observed proceedings throughout the hearing, I thought it would be helpful to share some insight to help employers avoid falling into the trap that this particular employer fell into.

I can say that the claimant admitted in the hearing that he made mistakes, but it’s evident that these were never fully reviewed, no performance management arrangements were agreed and his employer continued to leave him in charge of difficult projects which for the most part were successfully executed. Mistakes in this particular sector happen, but unless he’d been given an opportunity to know about them and then to improve, it was always going to be a challenge to prove a dismissal on the basis of Gross misconduct was a reasonable and fair decision.

So, if you’re reading this and you are considering to ultimately terminate the employment of an employee here a few things I noted which didn’t help the respondent at yesterday’s hearing.

Disciplinary Policy – Make sure that when you read your disciplinary policy you can define your reasons for doing so. And, be very clear that the problem you have with the employee matches with the list of grounds for termination you’ve created within the policy. Ambiguity will not serve you well.

HR Consultants – You may or may not have followed a disciplinary procedure. If not and you are going to engage the services of an HR Consultant get references, and once satisfied they have the necessary skills/experience and qualifications to support you, listen to their advice. They will not always tell you what you want to hear, but if you are paying for a qualified service then take note. Without proof that you’ve followed a set procedure prior to dismissal it more likely you’ll lose your case

Employment Lawyer – If you are determined that your HR Consultant isn’t giving you what you want, or you want the added reassurance that you are doing things the correct way then speak to an employment lawyer. Do not leave it to the last minute. Do get an employment lawyer involved early on – whichever side you’re on – because they really know what they are doing. An employment lawyer will quickly identify if you have a strong case and if not, they will tell you. They focus on what is winnable and not on a feeling that justice must be served. It will cost, but a lot less than a drawn-out case that has no chance of winning

If you’ve left it to the last minute the lawyer will probably be very expensive and there is still no guarantee that you’ll win. If you’ve failed in your duty of care to your employee, the case may be decided by considering Liability (fault) and Quantum (amount of the claim £$) separately, and the best you can hope for is less of a financial award to the claimant.

Correspondence and Communication – Don’t send anything in writing (Texts, Emails, Letters) or leave messages unless you are absolutely sure it’s necessary and correct. These will be presented in evidence and may compromise the outcome of your case (both sides). Be mindful of headers in any correspondence during the disciplinary procedure. The letter to invite an employee to an investigatory meeting which includes a header GROSS MISCONDUCT suggests dismissal, and this should not be a thought until you’ve followed a proper procedure. And, don’t include any additional issues into the disciplinary process unless you have addressed them previously, and there is a record. Having too many reasons for dismissal which have not been dealt with will raise red flags for the tribunal Judge!

Avoid a tribunal at all costs – No matter how big or small your business is don’t go through what I saw yesterday, unless you absolutely have too. Dismissing an employee or terminating your employment with an employer under difficult circumstances is awful, and at the end of the day whilst you may win, in terms of liability or receive an award, there are no real winners – except the legal team and HR Consultants of course.

As I watched the claimant go through his cross- examination I felt physically sick, and I wasn’t giving evidence. When the respondent gave his evidence, I could see that he was very shaken, and for a while, even though he’d created the situation, I felt a bit sorry for him. It really was an awful experience, but in this case necessary albeit totally avoidable if it had been handled correctly in the first place.

As an employer I am mindful of my responsibilities to my employees. I am also an employee of the business, but I just happen to have my name listed on ‘companies house’ and I am ultimately responsible for minimising risk to the business and its employees! Just because I run what could be considered a family-businesses, and have a good relationship with our teams, does not change the fact that I am required to consistently treat each member fairly and within the law.

Small businesses come with the added challenge of having very up close and personal relationships with their employees, and I cannot put enough emphasis on the need for employers to respond in a consistent manner to performance issues, no matter how long a team member has worked for you.

During the hearing, the Judge will not consider how big your business is when it comes to liability because it will be assumed that by deciding to employ someone you will know what your responsibility is to that person – it cannot be that the law will change according to the size of your organisation. In a dispute or if you have an issue with an individual with whom you’ve had a long relationship it’s important that emotions are kept at bay. If there is no choice but to part company how you handle things throughout must not have any grey areas!

If you are struggling with a work situation, be it as an employer or employee, and need support and advice on how to avoid the above or to work your way through it, we offer a practical HR Consultancy Service through our UK network of specialist partners. For more information please contact me on 07974 366140