Employment Law Archives - MLP Law

Q&A Session – Managing Sickness Absence

Sickness absence can have a disruptive effect on a business and should therefore be managed well, not only to minimise any negative impact on the employer but also to safeguard the welfare of staff.

 

We have therefore set out answers to some frequently asked questions by employers on the topic.

 

How does an employer know when to take action in connection with an employee’s sickness absence?

The first step in managing any absence process is ensuring that you have adequate employee reporting procedures, to allow any concerning patterns of absence to be identified.  In particular, problematic short-term/intermittent absences or long term absence.

 

Moreover, with many employees now working from home, absence notification policies should be reviewed and amended to make certain employees understand that they must still inform their employer if they are unable to work, due to ill health.

 

How should an employer raise a concern about an employee’s sickness absence with them?

Where an employee has a certain level of absence (usually outlined in the sickness absence policy), you should write to them, setting out the concern and arranging to meet with them to discuss it further.  You must then continue to communicate both in writing and in person with the employee, setting out your concerns and the steps you intend to take to investigate and tackle the issue.  This may include seeking the employee’s consent to obtain a medical report regarding their ill health.

 

As with any formal process, it is important to keep a paper trail of the communication and consultation process that you undertake with the employee and minutes of any meetings.

 

How much information is an employer entitled to when investigating an employee’s ill health?

An employer is entitled to obtain access to an employee’s medical records or commission a medical report in respect of a specific health concern, only where the employee’s consent has been obtained.  If an employee refuses to give their consent to medical evidence being obtained, the employer has to make any decisions in relation to the employee’s ill health and related absence(s) with regard to their continued employment, based on the limited information it does have.  Employers can include a clause in the employment contract highlighting this and outlining that to refuse to co-operate with such a process may have adverse consequences for the employee’s continued employment with the business.

 

Where medical reports/records have been obtained, it is important to share and discuss the contents of such documents with the employee.  Overall, medical evidence can assist in determining future action by the employer, including making reasonable adjustments.

 

Can an employer discipline an employee who is frequently off ‘sick’ on a Monday?

In some cases, frequent short-term absences are not caused by an employee’s ill health but are actually a conduct issue, necessitating disciplinary action.  This should only be done after a suitable investigation of the employee’s alleged health issues has been undertaken.

 

When can an employer dismiss an employee who has been absent on a long term basis?

Once you have sufficiently investigated an employee’s ill health you can consider dismissal.  Dismissal is the last resort, once you have established:

  • that the employee’s absence cannot reasonably be sustained by the business in the long term,
  • there is no hope that the employee will sufficiently recover their health to be able to return to work at all or in a reasonable time frame,
  • in the case of a legally disabled employee, that there are no reasonable adjustments that can be made to accommodate the employee and their health condition, within their role at work.

 

When an employer is determining what is reasonable when considering these issues, the size and resources of the particular business or organisation can be taken into account.

 

What happens if an employee is sick during annual leave?

In such circumstances, the employee is entitled to take any annual leave at a later date, as they have not been able to take full advantage of the annual leave by having a rest from work.  Annual leave also continues to accrue during sickness absence.

 

As is often the case, having comprehensive policies in place and well trained managers to deal with absence management can help to avoid costly mistakes and problems with employee morale.

 

Please don’t hesitate to contact the team at MLP Law with ideas about topics or for detailed advice in connection with any of the issues raised. You can reach us at employment@mlplaw.co.uk or @HRHeroUK or on 0161 926 9969.

 

 

Managing the risk of redundancies

It’s hard to juggle all the necessary demands involved in a redundancy process correctly, especially when you consider the wider context of the pressures that have resulted in having to make reductions in the workforce for the sake of your business in the first place.  It’s even harder when you factor in that you often know, and may work closely with, some of the individuals who are going to lose their jobs.  That’s often why mistakes are made; it’s stressful and can even be emotional for staff, not to mention the disruption caused to those conducting the process, often on top of their day to day roles and, more widely, the consequent negative effect on morale.  That’s why we want to set out how to navigate the challenges of a redundancy process, so that if or when the time comes, you’ll be familiar with the best way to conduct the process and minimise risk.

So, here is our expert guidance on how to avoid the all-too-common mistakes that can lead to unfair dismissal claims arising from redundancy.

 

So, the initial point to clarify is, what is a redundancy

It occurs when there is either a:

  • Business closure,
  • Closure of premises (ie a particular branch or site), or a
  • Reduction in numbers of staff.

Once you know your business has to make redundancies for one of these reasons, there is a particular process to be followed to ensure that any resulting dismissals are fair.

 

The first step is therefore to Warn employees…

The employer must give as much warning as possible of impending redundancies so that the representatives (if any) and the affected employees can inform themselves of the facts, consider possible alternatives to redundancies or seek alternative employment.

The warning is usually given at a meeting of all those affected.  Whoever holds the meeting should prepare a script, so that they are sure to be able to summarise WHY, WHEN and HOW the decision will be made.

At such a meeting the employer should inform staff of the following:

  • the reasons for redundancy
  • the numbers expected to be dismissed
  • who is in the pool of employees at risk
  • the consultation period
  • the process of selection, including the criteria for assessment and the timetable
  • the right of appeal
  • opportunities for redeployment
  • next steps – ie that there will be individual consultation and, possibly, further open meetings

Staff should be given the opportunity to ask questions at that meeting but, obviously, although some employees may try and press you – no indication should be given at this stage as to who will be made redundant, unless it’s obvious i.e. a whole department or workplace is to be closed.

Following this meeting, a letter should be given to individual employees:

  • confirming that they are at risk of redundancy
  • identifying the options of voluntary redundancy, redeployment and compensation for redundancy
  • referring to further meetings to consult on an individual basis (with the right to be accompanied)

 

Consult

Then comes the all-important consultation stage – to me, this is the real heart of the process and is central to any eventual dismissal being deemed to be fair.  Further, from a management point of view, it’s also the human side of the process, involving one-to-one contact and discussion so, done well, it can help the employee to process and accept the situation a bit more easily.  It can also steady the ship more generally, through the provision of information and the process of listening to concerns.

 

Nature of consultation

 Consultation should involve:

  • consultation when the proposals are still at a formative stage
  • adequate information on which to respond
  • adequate time in which to respond
  • conscientious consideration of the response to consultation

It is clear that, where there is no consultation on a collective level, the employer is required to consult individually on:

  • the individual’s selection for redundancy, and
  • whether there are alternatives to redundancy

It must be at a formative stage, in order for the consultation to be ‘genuine and meaningful’  – essentially meaning that an employee or employee representative can still, potentially, influence the outcome. What this means in practice may depend upon the particular circumstances.

Ultimately, a failure to consult may render the dismissal unfair even where fair selection criteria have been applied, as it will mean the employee is unable to discuss certain issues, such as ways of avoiding dismissals.

 

Right to be accompanied

 An employee does not have the statutory right to be accompanied at a redundancy consultation meeting, since such a meeting is not a ‘disciplinary’ meeting.

However, we consider that it may affect the fairness of the dismissal if a reasonable request to be accompanied to a redundancy consultation meeting is refused.

Where the redundancies arise from the closure of the whole business, the process may be truncated as there will usually be a much-reduced need for consultation in relation to selection, opportunities for alternative employment or enhanced redundancy.

Generally, however, during the consultation process there are therefore a few issues that should be considered and addressed.

One such key point is to consider ways of avoiding redundancy.

Indeed, we would recommend that, as a matter of good practice, an employer should always consider ways of avoiding compulsory redundancy, e.g.:

  • restricting new recruitment
  • voluntary severance
  • retraining and transfer to other work
  • moving the affected employees to another site
  • cost-saving measures such as:
    • short-time working and job sharing
    • reducing overtime
    • wage cuts
    • removing discretionary benefits
    • sabbaticals

Another key issue is to…

 Identify a selection pool. A selection pool is a group of employees from which the employees to be made redundant will be selected.

Where the redundancy dismissals are as a result of the closure of the whole business, all the employees will be dismissed, and a selection pool will not be relevant.  However, where the situation leading to the redundancies involves a reduction of a particular kind of work, a selection pool will be relevant.  The issue for an employer in such circumstances will be whether to include in the pool just those performing the same role, or also those whose skills are interchangeable.

An employer’s preference will usually be to keep the pool as narrow as possible, as this will keep the number of employees affected by the uncertainty of redundancy to a minimum but it’s not always the preferred approach, as it can be an opportunity to remove employees that are not up to par and keep more valuable members of staff who would otherwise be made redundant.

If there is an agreed redundancy procedure as part of a collective agreement, check this for any process to be applied to selecting the pool.

Where an individual is selected to be in the pool, ensure they are given an opportunity to question their inclusion as part of the consultation process. There is no rule that there must be a pool; an employer, if they have good reason for doing so, may consider a single employee for redundancy, i.e. there may be a pool of one.

However, the range of reasonable responses test applies to the employer’s decision as to what is the appropriate pool for selection, i.e. where the employer adopts a pool of one it will be for the tribunal to consider whether it was reasonable for the respondent not to consider a wider pool of employees. When considering whether an employer has used a correct pool of candidates from which those to be made redundant should be selected, the applicable principles are:

  • the question of how the pool should be defined is primarily a matter for the employer to determine but the employer must be reasonable in its approach
  • there is no legal requirement that a pool should be limited to employees doing the same or similar work unless the relevant categories have been selected by agreement with the union
  • conversely, the employer may well be justified in limiting selection to employees holding similar positions
  • the tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if they have genuinely applied their mind to the issue of who should be in the pool
  • if the employer has genuinely applied their mind to the issue of who should be in the pool, it will be difficult, but not impossible, for an employee to challenge that decision

It follows that, if the employer has selected a pool which is within the range of reasonable responses open to an employer in those circumstances, it will not be open to challenge.

 

Identify fair selection criteria 

If there is an agreed redundancy procedure as part of a collective agreement, the employer should check this for any pre-agreed selection criteria.

Selection criteria should be as objective and measurable as possible. However, not all aspects of employee performance or value lend themselves to objective measurement, and there is no obligation only to use criteria which are capable of objective measurement. ACAS guidance gives the following examples of selection criteria:

  • standard of work or performance
  • skills, qualification or experience
  • attendance record, which must be accurate and not include absences relating to disability, pregnancy or maternity)
  • disciplinary record

Other criteria that have been held to be appropriate include:

  • efficiency
  • skills/qualifications/training
  • greater experience in certain particular tasks or on certain machines
  • length of service

Use of length of service, or ‘last in, first out’ (LIFO), alone as a selection criterion is now rare, although it is often used a tie-breaker between two employees scoring equally on other criteria.

Generally, the employment tribunal will not substitute its own view of what are fair selection criteria unless the criteria adopted by the employer are ones that no reasonable employer could have adopted.

 

Apply the criteria fairly

The employer should select employees for redundancy fairly and objectively on the basis of the criteria.

A tribunal is likely to be satisfied as long as a reasonable system for selection has been set up and can be shown to have been administered fairly. Detailed analysis of scoring systems is unlikely to be permitted by the tribunal when considering a claim of unfair dismissal. On the other hand, if the employee is able to show the employer has failed to apply a non-judgmental criterion fairly (eg length of service), they may be entitled to disclosure of a number of documents relating to the retained employees and pertaining to all of the criteria.

An employer is entitled to rely on the judgement of the individual manager carrying out the selection process. Their application of the selection criteria will not be subjected to detailed scrutiny by the tribunal, although a glaring inconsistency in the application of the criteria may render the dismissal unfair.

Where two sets of employees are scored by different managers, it may be prudent for the employer to use some form of ‘moderation’ to ensure there is no inconsistency. However, a selection process will be unfair, even though it avoids the application of subjective criteria, if it measures the skills of those in the redundancy pool:

  • by subjecting them to an assessment conducted by persons with no previous knowledge of the individuals
  • without any reference to their past performance (either by questioning those who had managed them or by looking at their past appraisals)

Individual employees will wish to be consulted on how the selection criteria have been applied and how they scored, both individually and in comparison with other employees. A failure to allow an employee to contest their assessment scores until after the decision to dismiss was taken has been held to render the dismissal unfair.

An employee should usually be provided with a copy of their own assessment. Employees will want to know the scores of the other employees in the pool so that they can see their own scores in context. There is no case which says that an employer is obliged to disclose the scores of others in order to ensure that the dismissal is fair, but the employer should think about disclosing some information (eg, the average score or the ‘break point’) where the scoring will otherwise be meaningless.

If other employees’ scores are disclosed, for data protection purposes this should be done in such a way that the employees in question cannot be identified from the information.

 

Consider and consult on alternative employment

The employer should take reasonable steps to find the selected employees alternative employment within the organisation (or the group, if it is part of a group) and should consult with them about it.

Alternative employment is also relevant to the employee’s entitlement to a statutory redundancy payment: if the employee unreasonably refuses an offer of suitable alternative employment made within the requisite time period, they will lose their entitlement .

The precise scope of the duty on the employer to find alternative employment is not strictly defined, but it is clear that all reasonable steps should be taken. With modern communications such as email, even in a large group of companies, enquiries of the relevant person in each of those group companies as to the available vacancies should be possible. A key point of note here are that suitable alternative posts can include an offer of a demoted post. The obligation to offer alternative employment where a new role becomes available continues until the expiry of the employee’s notice period.

Finally, don’t forget to contact those on maternity leave and absent due to ill health with internal opportunities.

 

Redundancy Dismissal Meeting

As with any dismissal, once the decision to make an employee redundant has been reached, that employee should be invited to attend a dismissal meeting to discuss the rationale in more detail and the various payments that the employee is entitled to.  The employee is entitled to be accompanied as such a meeting. The decision taken at the meeting should then be followed up and confirmed in writing.

 

Conduct an appeal

 It will very rarely be fair to make an employee redundant without offering them the opportunity to appeal the employer’s decision. If there is an agreed redundancy procedure as part of a collective agreement, check this as it is likely to include an appeal process. It would be wrong for an employment tribunal to find a dismissal unfair only because of a failure to provide the employee with an appeal hearing. However, the absence of an internal appeal is always a relevant factor to consider when looking at the overall fairness test.

Sometimes the overall circumstances of the case will mean that the absence of an internal appeal in a redundancy dismissal case does in fact render a dismissal unfair. Nonetheless, it’s good practice to allow an employee an opportunity to appeal a dismissal for redundancy.

 

Calculating the payment

The redundancy payment itself is calculated by taking into account the employee’s age and length of service (up to a maximum of 20 years’ service).  The statutory cap then needs to be applied – currently at £643 per week.

The maximum statutory redundancy payment is therefore currently £19,290 (until this April).  Of course, enhanced payments can be also be made. The employee is also entitled to notice (either to be worked or paid in lieu) and outstanding holiday entitlement, if due.

 

Voluntary Redundancy

 Although a voluntary redundancy may look like a consensual termination, an employee who volunteers for redundancy is routinely to be regarded as dismissed for redundancy.  It’s therefore often useful to consider a Settlement Agreement in such circumstances.

 

Pregnancy and Maternity

We also just want to remind you of a change to the law in April.  Employers have an obligation to offer suitable alternative employment, where a vacancy exists, to a parent who is on maternity leave if their job is at risk of redundancy.  Essentially, those employees have to go to the front of the queue. The current protection is limited to the duration of the maternity leave but from 6 April of this year, it is to increase to cover pregnancy and the period of 18 months from birth (or adoption placement).

 

A Quick word about Collective Consultation…

As we mentioned above, it applies where:

  • an employer is proposing to dismiss as redundant 20 or more employees within any period of 90 days or less, ie where there is a statutory obligation to consult
  • there is no statutory obligation to consult collectively, but the employer otherwise needs to consult with employee representatives, because:
    • there is an agreement to do so under the Information and Consultation Regulations or a European works council agreement
    • it is considered prudent to consult with existing employee representatives as part of a fair procedure and for good industrial relations, eg where a collective agreement with a recognised trade union is in place in relation to the business affected by the redundancies.

We recommend that you contact us for more information if it may be relevant to your business, but, essentially, everything we have discussed today would apply, together with additional requirements to liaise with employee reps etc.

 

In conclusion…

Getting the redundancy process right can not only minimise legal and financial risk but can also allow you to recalibrate your business, equipping it for future success.

Changes to Holiday Pay

From the beginning of the year, changes to holiday pay calculations, particularly in relation to those with irregular hours or who are part-time, come into force.  Gareth Matthews, Head of Employment at mlplaw, sets out the key points.

Following Government consultation, the following reforms have been made to holiday pay calculations, introducing into UK law:

(1) rolled-up holiday pay for irregular hours and part-year workers;

(2) an accrual method to calculate entitlement at 12.07% of hours worked in a pay period for irregular hours and part-year workers in the first year of employment and beyond;

(3) a method of accrual of annual leave for irregular hours and part-year workers for when they are on other periods of leave (eg maternity/family related leave or sick leave), and

(4) various pieces of retained EU case law considered necessary to retain workers’ overall level of protection and entitlement in relation to carry over of annual leave when a worker is unable to take their leave (eg due to being on maternity/family related leave or sick leave).

The changes also revoke the temporary rules brought in during Covid, so that workers can no longer accrue Covid carry over leave but can use leave accrued prior to 1 January 2024 on or before 31 March 2024.

If you would like advice from the Employment team at mlplaw in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK

Anticipating a new arrival in 2024?

Draft changes to paternity leave Regulations have just been published and Julie Sabba, Employment Associate at mlplaw, outlines the key points.

 

For babies due on or after 6th April 2024, various changes to paternity leave are due to come into force.  The significant changes are as follows:

 

  • employees will be able to take paternity leave at any time in the 52 weeks following the birth, extending the period beyond the current 56 days after birth;

 

  • the current two-week paternity leave entitlement will be able to be taken as two separate one-week blocks, instead of two consecutive weeks (or being restricted to taking only one week); and

 

  • the current requirement, to provide 15 weeks’ notice prior to birth of the intention to take paternity leave, will be reduced to only 28 days’ notice.

 

These changes are coupled with the extension of redundancy protection, giving relevant employees preference, relating to suitable alternative employment in any redundancy process.  Such protection will now go beyond the period of actual leave and will apply for a period of 18 months from birth.

 

If you would like advice from the Employment team at mlplaw in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Baldness – The New Frontier in Workplace Harassment?

Julie Sabba, an associate in the Employment Team, considers a recent Employment Appeal Tribunal (EAT) decision, Finn v The British Bung Company, and its implications for harassment on the grounds of gender in the workplace. She asks the question – is commenting on the fact that someone is bald, akin to commenting on the size of a woman’s breasts?

 

Facts

Tony Finn (TF), had worked for a manufacturing firm, The British Bung Company, for 24 years before being dismissed last May. TF raised various claims in the Employment Tribunal, including one of harassment, which related to the fact that his lack of hair had been commented on during an argument at work.

 

He stated that during an altercation with his supervisor he was threatened with being ‘decked’, sworn at and called ‘bald’. TF claimed that the use of the word bald amounted to harassment on the grounds of his sex.

 

Law

In essence, harassment under the Equality Act 2010 is where unwanted conduct has the purpose or effect of:

 

•violating the victim’s dignity or

 

•creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim

 

The conduct must also be related to a protected characteristic, such as sex, race or age.

 

Decision

In arriving at its decision, the EAT upheld the original Tribunal Judge’s decision, which was that he determined that calling someone bald is an insult that amounted to harassment. He found that there is a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other, due to the fact that baldness is much more prevalent in men than women.

 

The Judge concluded that baldness is inherently related to sex and that the derogatory comments in relation to TF’s appearance had been intended to hurt his feelings, and therefore amounted to harassment. The Judge continued by stating that commenting on a man’s baldness in the workplace is equivalent to remarking on the size of a woman’s breasts.

 

Comment

It is important to ensure that staff are aware that unpleasant or negative behaviour or comments towards colleagues are completely forbidden, whether they relate to appearance or to any other factor (such as mimicking the way someone talks). Policies promoting equality and diversity, underpinned by training, provide employers with the means to challenge accusations of discrimination between members of staff, in addition to encouraging a kind and collegiate atmosphere in the workplace.

 

If you would like advice from the Employment team at MLP Law, in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

 

 

The Art of Defending Constructive Dismissal Claims

Constructive dismissal refers to a situation where an employee resigns from their job in response to a fundamental breach of their employment contract by the employer.  The breach may be a single serious incident or a series of incidents that cumulatively create an untenable working environment.  In essence, the employee resigns because they feel they have no other reasonable option due to the employer’s actions.

To effectively contest a constructive dismissal claim, it’s crucial to understand the key elements involved.  The Employment team at mlplaw have therefore set out how to best navigate defending such a claim.

 

Understanding the Elements of Constructive Dismissal

First, it’s crucial to identify the specific terms of the employment contract that the employee claims were breached.  This could include issues such as changes in job responsibilities, working conditions, harassment, or a breakdown in trust between the parties.

Next, it is important to determine if there has been a fundamental breach of the employment contract.  Is the alleged breach of such significance that it goes to the root of the employment relationship, making it impossible for the employee to continue working?

 

Defending a Claim

Once you have established the central pillars of the case brought by the employee, you must determine the grounds for refuting the claim.  The two key areas of challenge are:

  • That the employer did not breach the contract as alleged; and/or
  • That action (or inaction) by the employer was not sufficient to amount to a material breach of contract.

Once the overarching approach has been determined, it must be narrated in the defence form – known as an ET3 – that is then submitted to the Employment Tribunal.  The ET3 must be submitted within 28 days from the date the employer received the claim form and can be done online.

It is also necessary to collate detailed written records of all relevant communications, incidents, and significant events, relating to the employee.  This includes emails, meeting notes and any other documentation that may be pertinent to the case, as they will form the basis of the documentary evidence in the employer’s defence.

Similarly, employers who utilise a fair and reasonable procedure when faced with an aggrieved employee, can rely on the documentary evidence generated during that process in the event of a claim.  Thorough grievance procedures, supported by detailed policy documentation addressing various issues, such as discrimination in the workplace, bullying and harassment, are all vital.  In addition, having those robust policies in place can also demonstrate an employer’s commitment to fair treatment and compliance with the law and can help to reduce the risk of employees making a constructive dismissal claim in the first place.

Moreover, a constructive dismissal claim is often founded on the assertion that there has been a breach of the implied duty of trust and confidence.  This requires an employer to demonstrate that they had reasonable and proper cause for behaving in a particular way.  Ensuring that employees are aware of the reasons behind decisions that may impact their employment can minimise the risk of litigation.  Where this approach has been taken, those involved in the process will be useful witnesses in the event of a claim.  Therefore, businesses that have communicated changes that affect the employment relationship in a transparent manner (such as changing an employee’s role or terms and conditions) can refer to those processes to refute an accusation that the employer has acted in such a way as to undermine trust.

Finally, given that prevention is better than cure, businesses should consider early intervention when faced with an unhappy employee.  Many employers find that when they encourage open communication in the workplace, it can lead to concerns being addressed before they escalate.  This may involve internal mediation or other alternative dispute resolution methods, which can resolve issues without the need for the employee to resort to legal action.

In summary, by combining legal expertise, communication strategies, and proactive measures, employers can be in a stronger position when reacting to constructive dismissal claims.  It’s important to approach each case individually, considering the unique circumstances and tailoring the defence strategy accordingly.

Understanding Discrimination Claims in the Employment Tribunal

There are so many layers to discrimination claims in the Employment Tribunal that employers often don’t know where to start.

Avoiding discrimination claims in the first place is clearly the best approach, but if you do receive a claim, how do you defend it? As an employer, it’s vital to understand the complexities of discrimination claims so that you’re ready to tackle the common hurdles which affect employers head-on.

Thankfully, the Employment Tribunal experts at mlplaw have created this blog, especially for employers seeking to protect their business from discrimination claims.

Peel back the layers of complexity:

Discrimination legislation generally, and discrimination claims specifically, can be incredibly daunting for employers. However, with expert guidance, these layers of complexity can be stripped back so that you can protect your business from Employment Tribunal claims.

From recognising the protected characteristics (such as race, age, sex, or disability) to understanding the differences between the different forms of discrimination (such as direct, indirect, or harassment), when you understand the legal framework you can put into practice effective measures to ensure you don’t fall foul of your obligations.

Common challenges for employers and addressing them proactively:

It is all too easy for employers to fail to identify and appropriately tackle discriminatory behaviours, or to overlook the importance of putting in place effective policies and procedures to prevent such behaviour from occurring.

The employment law experts at mlplaw have seen these mistakes and many more. They have also seen how costly they can be for employers and have practical solutions to prevent your business from falling into the same trap.

They know that the key to overcoming these challenges lies in taking proactive measures. Employers need robust anti-discrimination policies, regular training to educate employees on what is and aren’t acceptable in the workplace (as well as for managers on how to deal with discriminatory behaviour), and a commitment to fostering an inclusive workplace culture.

Addressing issues promptly, conducting thorough investigations, and taking corrective action when necessary are all crucial steps in building a workplace that values diversity and combats discrimination.

Tailored Solutions for Employers:

We know that each case is unique and our approach involves providing a bespoke solution that is tailored to your business needs. Whether it’s preventative measures, dispute resolution, or representing you in the Employment Tribunal, mlplaw offers a comprehensive suite of services specifically designed to safeguard your business.

Conclusion:

Discrimination claims may be complex, but with the right expertise and support, proactive employers can tackle the challenges these claims bring and avoid the consequences that can befall the unprepared.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully avoiding and defending discrimination claims in the Employment Tribunal.

Settling an Employment Tribunal Claim: The Strategic Choice?

Picture this: You’re a business owner, and an Employment Tribunal claim lands on your desk. The immediate instinct might be to dig in your heels and prepare for a protracted legal battle, driven by your values as a responsible employer. The sense of injustice can sting, making it feel like a matter of principle to defend your name to the hilt.

However, consider the hidden currents beneath the surface. The time and costs incurred in defending a claim can be like a heavy anchor, slowing down your business voyage. The process itself is like a turbulent storm, and the impact of being absorbed by ongoing employment litigation can’t be underestimated.

Thankfully, there’s a more efficient course of action. Let’s explore the benefits of achieving commercial settlements in Employment Tribunal claims:

  1. Avoid Costs and Minimize Financial Impact:

Think of settling the claim as a strategic manoeuvre, akin to finding a shortcut through the maze. It can help you steer clear of the financial pitfalls of a prolonged legal defence. Settling early in the Employment Tribunal process often means paying a significantly lower settlement sum to the Claimant than the costs incurred by defending the claim through a final hearing. Even if the claim is successfully defended, recovering those costs in the Employment Tribunal is a long shot, meaning this is a serious consideration even in cases where the employer has the strongest defence.

 

  1. Cut Out Distractions and Free Up Your Time:

Consider the Employment Tribunal process as a detour, a long and winding route. Settling is like finding the direct highway to resolution, saving you from the stress and distraction of navigating a legal labyrinth. It’s a faster way to get back to matters that truly benefit your business.

 

  1. Stay in Control:

A settlement places you in the driver’s seat, like holding the reins of your business. You dictate the terms, ensuring that the outcome aligns with your goals and needs. You wouldn’t hand control of your business to a stranger in any other context, so why consider it here?

 

Settling an Employment Tribunal claim isn’t waving a white flag; it’s a strategic advance. It’s a shrewd business decision to utilise your resources efficiently, rather than exhausting your energy, time, and finances in a prolonged legal battle. By freeing up your time and minimizing the financial impact of the claim, you can redirect these valuable assets to more productive ventures within your business. This approach ensures that an Employment Tribunal claim remains an inconvenience, rather than growing into a major distraction and financial strain on your business.

mlplaw is here to support you throughout the Employment Tribunal journey and ensure you have expert representation every step of the way. Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of achieving a successful outcome when defending an Employment Tribunal claim.

The Employment Tribunal Process: From Start to Finish

The Employment Tribunal process can appear daunting for an employer. Understanding the sequence of events is crucial to managing expectations and ensuring a smoother journey through the legal system.

In this blog, we’ll guide you through the Employment Tribunal process from start to finish, offering an overview of what to expect at each stage.

 

  1. ACAS Early Conciliation

Most Employment Tribunal claims begin with the optional step of ACAS Early Conciliation. Before a claimant can submit a claim to the Employment Tribunal, they must notify ACAS, who will aim to facilitate a resolution between the parties before the matter proceeds to a formal claim.

 

  1. Claim Submission

If the dispute is not resolved at ACAS Early Conciliation stage, the formal proceedings will commence the submission of a claim. A Claimant (the person bringing the claim) files an ET1 form with the Employment Tribunal, outlining the details of their complaint.

 

  1. Acknowledgment and Response

Upon receipt, the Employment Tribunal will acknowledge the claim and notify the Respondent (typically the employer). The Respondent must then submit their response using an ET3 form, in most cases within 28 days.

 

  1. Case Management

After the response is filed, the Employment Tribunal will take over the management of the case. This will include scheduling and managing key dates, such as deadlines for submitting documents and witness statements.

 

  1. Preliminary Hearings (if necessary)

In some cases, a preliminary hearing may be held to address specific issues or disputes, or to discuss the case management timetable referred to above. These hearings help streamline the main tribunal process by resolving any procedural matters and setting a clear schedule for the progression of more complex claims.

 

  1. Exchange of evidence

The Claimant and Respondent are required to exchange all relevant evidence in their possession. This can include anything from meeting notes and correspondence to CCTV footage and WhatsApp messages. As the parties are obliged to provide all evidence which is relevant to the issues in the claim, this can also require the parties to disclose evidence which is damaging to their case.

The evidence exchanged allows the Employment Tribunal to assess the strength of the evidence, scrutinise the parties’ arguments, and make informed decisions based on a complete and accurate picture of the situation.

 

  1. Witness Statements

Witness statements play a pivotal role in Employment Tribunal claims as they provide firsthand accounts of the events and circumstances leading to the dispute. These statements are crucial because they serve as evidence presented by individuals who have direct knowledge of the case, such as people who observed key events or who made key decisions (such as disciplinary decisions).

Witness statements help in establishing the facts, corroborating or refuting the claims made by either party, and ultimately influencing the Employment Tribunal’s decision. Witness statements can significantly impact the outcome of a case, making them a vital tool in ensuring a fair and just resolution in Employment Tribunal claims.

 

  1. The Final Hearing

The final hearing is where the heart of the matter is addressed. It’s here that both parties present their case, and witnesses may be called upon to present their evidence and face cross-examination. The Employment Tribunal will evaluate the evidence and arguments before making a judgment.

The final hearing represents the culmination of the parties’ efforts to make their case and is where the Employment Tribunal’s decision, which can have substantial legal and financial consequences, is reached.

 

  1. The Judgment and Remedy

The Employment Tribunal issues its judgment at the conclusion of, or following, the final hearing. The judgment typically outlines the reasoning behind the Employment Tribunal’s decision, and in many cases, or on request, the Employment Tribunal will provide its reasons in writing.

If the claim is successful, the Employment Tribunal may also confirm the remedy which is being awarded, although it is also common for this to be determined at a separate Remedy Hearing. The remedies available in Employment Tribunal include compensation, reinstatement, or re-engagement and the actual remedy awarded will depend on the circumstances and the outcome sought by the Claimant.

 

  1. Appeals (if applicable)

Appeals are relatively rare in Employment Tribunal claims, although either the Claimant or the Respondent is entitled to appeal if they believe the Employment Tribunal made a legal error in reaching its decision. Parties are not entitled to appeal simply because they are unhappy with the Employment Tribunal’s decision. Appeals against decisions made by the Employment Tribunal are heard by the Employment Appeal Tribunal (EAT) and appeals beyond the EAT are also possible in certain circumstances.

 

Conclusion:

We hope this blog will equip you with a good understanding of what the Employment Tribunal process entails, from the moment you are contacted by ACAS during the Early Conciliation process until the Employment Tribunal hands down its judgment.

mlplaw is here to support you throughout the Employment Tribunal journey and ensure you have expert representation every step of the way. Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully defending an Employment Tribunal claim.

What Employers Should Know About the Employment Tribunal Process

Navigating the Employment Tribunal process can be a complex and daunting task for employers. As you prepare to face this legal challenge, you’re likely to have a host of questions swirling in your mind.

We’re here to provide clarity and guidance, and in this blog we address the ten of the most frequently asked questions regarding Employment Tribunal claims. From understanding the role of the ACAS conciliation process to the possibility of recovering costs, we’re ready to shed light on the key aspects of this legal journey.

Let’s dive in and demystify the Employment Tribunal process together.

 

1. What is the ACAS conciliation process?

Before an individual can submit a claim to the Employment Tribunal he or she must participate in the ACAS conciliation process. This means that ACAS help to resolve the dispute by reaching an agreement between the parties, without the need to go to an Employment Tribunal.

 

2. How do I defend a claim against my business?

First, you must ensure that you complete and submit a form outlining your response to the claim (called an ET3).  This can be done online or by post.  You must briefly outline the facts of the case from your point of view and it is also useful to include the legal grounds of your defence. Then, either you or your lawyer must argue your case before a Judge.

 

3. Can an Employment Tribunal reject or ‘strike out’ a claim?

Yes, but it is unusual.  A claim can be rejected if some of the essential information is not contained in the claim form (also known as an ET1). In certain circumstances, the Employment Tribunal may ‘strike out’, for example, if it has no reasonable prospect of success, is brought or conducted vexatiously, or is not actively pursued.

 

4. How long do I have to respond to a claim?

You have 28 days to submit your response to the Employment Tribunal once you have been notified of the claim.

 

5. What happens after the ET3 has been submitted?

Once both parties have submitted the relevant forms, the Employment Tribunal will set out a timetable, outlining further documents that may be required and setting dates for any evidence to be shared between the parties. The Tribunal may also set a date for the final hearing, at which evidence will be given (either in person or remotely).

 

6. What is the difference between a preliminary hearing and a final hearing?

In some claims, a preliminary hearing may be held to determine specific issues, such as whether an employee has a disability (in disability discrimination claims). A final hearing is usually the final stage of a claim, where the Employment Tribunal hears evidence and determines whether the claim succeeds or not.  If the claim succeeds, there may also be a remedy hearing to determine how much compensation should be awarded to the Claimant.

 

 7. Do all claims go to a final hearing?

No. In fact, most claims do not go all the way to a final hearing. Many cases settle before reaching a final hearing, others may be discontinued or struck out for a variety of reasons. However, it is often best to prepare for the claim to go all the way.

 

8. What sort of evidence is considered in an Employment Tribunal claim?

This may vary from claim to claim, but will typically include witness evidence from people who witnessed key events or made decisions relating to the claim, as well as any relevant documents such as contracts, meeting notes and policy documents. It is common for WhatsApp messages, social media posts, and CCTV footage to be referred to.

 

 9. Should I just settle the claim?

It is always worth considering whether settlement might be a viable option. In many cases, there may be commercial merit in reaching a settlement, where this avoids the risk, time, and cost of the claim going all the way to a final hearing.

 

10. If the claim is successfully defended, will I be able to recover my costs?

Possibly, though this is unlikely. Costs awards tend to be the exception, rather than the rule, in Employment Tribunal claims and will only be awarded in limited circumstances, such as where the claim was pursued vexatiously or had no reasonable prospect of success.

 

We hope you find this overview of common questions about Employment Tribunal claims to be informative and helpful. Remember, when it comes to navigating the intricacies of the Employment Tribunal process, having the right legal guidance can make all the difference.

If you find yourself facing an Employment Tribunal claim, or if you have additional questions not covered in this blog, don’t hesitate to get in touch with our team of experts. We’re here to provide you with the support and representation you need to protect your interests. Your peace of mind is just a click or a phone call away.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you’re well-prepared for whatever the Tribunal process may bring.

Common Employment Tribunal Mistakes and How to Avoid Them

Employment Tribunal claims can be a legal minefield for employers, and even the most well-intentioned businesses can stumble into costly pitfalls.

One key to successfully navigating these complexities is to recognise the common mistakes and take proactive steps to avoid them. In this blog, we’ll shed light on some of the most common mistakes employers make when defending Employment Tribunal claims and offer valuable guidance on how to steer clear of these potential hazards.

 

  1. Lack of Proper Documentation:

 

One of the most significant mistakes employers can make is failing to maintain comprehensive records of employment-related matters. In the absence of proper documentation, it becomes challenging to prove that your actions were fair and reasonable in the event of a claim.

To avoid this mistake, ensure that all employment records, including contracts, performance reviews, disciplinary actions, meetings and correspondence, are well-maintained and easily accessible.

 

  1. Mishandling workplace procedures, such as in relation to disciplinary, grievance, performance and absence issues:

 

The complexity of Employment Law means it is all too easy for employers to mishandle workplace procedures, particularly in relation to disciplinary and grievance matters. This typically includes not following the correct processes, not providing an opportunity for the employee to appeal, or showing bias in decision-making.

To avoid this mistake, make sure your internal procedures, such as in relation to disciplinary and grievance matters, are clearly outlined, consistently followed, and that all parties involved are treated fairly and impartially. Best of all, take professional advice on how best to manage issues such as disciplinary and grievance proceedings and performance and absence management.

 

  1. Misclassification of Employment Status:

 

Misclassifying employees or workers as self-employed or as contractors can lead to Employment Tribunal claims. It’s crucial to understand the legal distinctions between these categories and correctly classify your workforce. Misclassification can result in claims for employment rights, including unfair dismissal, holiday pay and minimum wage entitlements.

 

  1. Ignoring ACAS Early Conciliation and alternative dispute resolution options:

 

The ACAS Early Conciliation process is designed to resolve disputes before they escalate to an Employment Tribunal claim.

Failing to engage in this process or closing your mind to alternative dispute resolutions options such as negotiation and mediation can be a costly oversight, not to mention a wasted opportunity to reach a resolution before the cost, time and stress of defending the claim have a detrimental impact on your business.

 

  1. Misunderstanding Time Limits:

 

It’s essential to understand the time limits for responding to Employment Tribunal claims. Missing these deadlines can result in default judgments against you. Keeping a close eye on these timelines and seeking legal advice promptly is crucial.

 

Employment Tribunal claims can be daunting, but with careful preparation and guidance, employers can avoid common mistakes that often lead to unfavourable outcomes. It’s vital to prioritise proper documentation, fair procedures, and a proactive approach to dispute resolution. If you ever find yourself facing an Employment Tribunal claim, seeking expert legal advice from experienced employment lawyers can be your best defence against these pitfalls. Don’t let these errors derail your business – take the necessary steps to protect your interests and maintain a healthy working environment.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully defending an Employment Tribunal claim.

Proposed Legislation aimed at Tackling Bullying at Work

Legislation that aims to make preventing bullying at work a stand-alone right has been proposed in Parliament for MPs to consider.

The Bullying and Respect at Work Bill, tabled by Labour, seeks to strengthen workplace processes to assist in the reporting and investigating of incidents and introduce guidance on best practice regarding respectful work environments.  This will be done through a Respect at Work Code, to be enforced by the Human Rights Commission.

Not only does the Bill introduce a legal definition of bullying, it also intends to impose robust mechanisms in relation to:

  • reporting incidents of bullying;
  • Investigating claims of bullying; and
  • Enforcing the outcome of any such investigation.

Currently, employees rely on protections offered by the Equality Act 2010 or the right to claim constructive dismissal, to legally challenge workplace bullying.  The Bill is in its early stages and will be watched with interest, by staff and employers alike, as it progresses through the legislative process.