Top 5 ways you’ll end up facing an employment tribunal

Hannah Newell, LawBrief for LawBite, looks at the top 5 ways you can guarantee that’ll you get yourself taken to an employment tribunal.


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Not having the right contracts in place can cause a myriad of issues for SMEs.

The prospect of an employment tribunal for any employer, small or large, is a worrying one, even where a claim has no basis or justification. In the extreme they can be costly in financial and reputational terms, damaging to staff morale and hugely time-consuming. The examples below are some of the main ways in which employers find themselves up against a discontented employee at a tribunal. Consider the scenario and remember, when it comes to the employment tribunal, prevention is always better than cure.

1. You don’t have contracts of employment in place or they are not fit for purpose

The bare minimum you are required to provide to your staff is a written statement of terms and conditions of their employment within 60 days. You need this to set out the expectations you have of the employee and them of you. The employment contract is an essential HR document and is the basis of the paper trail you should be keeping for each of your staff. Include in the contract salary, working hours, sickness procedures, notice periods and any other clearly worded policies that reflect the organisational needs of your business.

2. You’ve failed to keep up with the changes in the law

You have employment contracts in place but they are no longer compliant because you have failed to update them. By way of example, does your contract cover auto enrolment pensions, abolishment of the retirement age or holiday pay whilst on sick leave? The world of employment law is constantly changing; April and October are the key months to check for updates.

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3. You did not address performance issues early

You have a sound and compliant employment contract but a particular staff member is not fulfilling your expectations and importantly, falling short of the job specification you have carefully drafted. It is tempting to keep quiet and hope that things will improve but realistically, early intervention is often preferable because addressing issues later on when an employee has been engaging in their work practices for some time is likely to lead to a dispute. Use probationary periods and appraisal systems for new employees. Adopting a culture of transparency and open communication will make it easier both for you and employees who can confidently raise issues informally with managers rather than initiate a more formal grievance procedure which, too often than not, is the precursor to a tribunal.

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Following proper procedure is paramount to staying clear of any employment issues.

4. You made an assumption about the capabilities of an employee

Have you inadvertently but naively assumed that the capabilities of an employee are limited because of a disability? Has this affected their job role, prospects for promotion or day to day treatment? Have you passed over a job applicant on the basis of your assumptions? If so, you are on dangerous ground and face a potential claim for discrimination. Consider instead whether reasonable adjustments can be made for your employee to perform and how you can support them.

5. You’ve failed to follow a proper procedure

You have a justified issue with an employee and their conduct but you do not pursue it in a fair manner. At a tribunal, failure to follow a proper procedure can result in significant increase of up to 25% to an employee’s compensation. The ACAS Code of Practice on Discipline and Grievance is the minimum standard for your in-house procedures. Ensure all your line managers are aware of procedures to follow.

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