Top Tips for Employers Employment Tribunals
Our series of ‘Top Tips for Employers’ articles have been aimed at highlighting the key processes and procedures to be followed in dealing with employees in certain circumstances. In adopting a fair and methodical approach in dealing with all employees, employers will need to ensure that measures are in place to help avoid any litigious employment tribunal claims being made by a member of staff. However, it is important for Employers to bear in mind what an Employment Tribunal will consider when dealing with employment law claims, should they arise.
Is there a contract in place between Employer and Employee?
This may be an express written agreement or an implied agreement between the parties. If there is a written contract between the parties, the Tribunal will look at the clauses in the contract and the obligations of both employer and employee under that contract. If there is no express written agreement, the Tribunal will consider any implied contractual terms, looking at the reality of the relationship between them.
Are there correct policies in place?
A Tribunal will ask the Employer whether they had implemented staff policies into their business to deal with specific employment issues; this may be an Equality Policy, or a Maternity Leave Policy or maybe an Anti-harassment and Bullying Policy (please read our previous article in this series : Tollers’ Top Tips: Employment Contracts and Policies & Procedures).
Was the correct policy followed?
The Tribunal will consider whether or not the policy that had been implemented by the Employer had been followed correctly. It is important that Employers carry out a full and complete process for each employee, for instance, in both grievance and disciplinary matters Employers should inform Employees of their right to appeal against any decision that had been made by the Employer in the outcome of the procedure. If an Employee appeals the decision, then the Employer must carry out a fair and impartial appeal process.
Was the process reasonably carried out?
The Tribunal will also consider whether the Employer has carried out a just and reasonable process. In considering this, the Tribunal may take note of the Employer’s efforts to follow the ACAS guidance on carrying out grievance and disciplinary procedures.
You may find our previous articles Tollers’ Top Tips: Managing Sickness Absence and Tollers’ Top Tips for Employers: the Redundancy Process useful in providing some clearer guidance on the processes that should be followed in these situations.
Are there any discriminatory issues?
The Employment Tribunal will consider whether or not the Employer has treated the Employee unfavourably as a result of the employee’s protected characteristic (please read our previous article in this series: Tollers’ Top Tips for Employers: taking the fair approach).
Can the employer’s decision be objectively justified?
One of the main questions that the Tribunal will consider is whether a reasonable employer would have made the same decision when faced with the same circumstances. An Employment Judge cannot infer their own belief or their own thoughts as to what they would have done, but instead, they will consider whether or not the Employer had acted reasonably or made a reasonable decision, looking at the specific circumstances of the matter.
Can the above be evidenced?
Employers must ensure that when following certain procedures and policies with employees, there is a paper trail of all meetings, conversations and decisions made in relation to each specific matter. An Employment Tribunal does not know your business and they have not been privy to all of the facts in each case until it is documented and presented to them at an Employment Tribunal. Documented evidence of a complete fair and reasonable process will be required to establish a comprehensive and strong defence in any matter.
Benefit of Hindsight:
By following these tips and making sure you can evidence the processes you have followed and the decisions you have made, you may find your time at tribunal easier. Not having the evidence will make you wish you had, so give yourself the benefit of hindsight!
Need some advice?
Talk to Tollers! We are HeRe for you.
Tollers’ Employment Law Team are here to help should you have any queries regarding this article, do not hesitate to contact us on 01604 258558.