Top 10 tips for defending an employment tribunal claim

Employment tribunal claims are an occupational hazard for all employers. With the best will in the world its not always possible to prevent claims. So, what should an employer do to put itself in the best position to defend a claim…?

1. Prevention is better than cure. Take time to develop effective HR policies and processes, give your managers appropriate training, and develop a culture in which staff are treated fairly. Employers that do this best will usually have fewer claims.

2. If it is necessary to discipline or performance manage employees make sure the right managers are dealing with the process. If the matter ends up in tribunal it will be these managers who are called as witnesses on behalf of the business.

3. Tribunals like to see contemporaneous documentation.. Documentary evidence of what happened is likely to be more convincing than witness recollections.

4. Engage in the ACAS conciliation process. Prior to issuing a claim and during the claim itself ACAS will be available to help the parties settle a claim. Explore whether some agreed resolution is possible to avoid the cost, stress, and risk of having a contested hearing.

5. If your business receives an employment tribunal claim ensure you respond to the claim within the appropriate deadline. The claim will not go away by ignoring it.

6. Engage in the tribunal process. Comply with the tribunal directions and engage with other parties as appropriate.

7. Remember, an employment tribunal is a court of law!

8. Ideally, if your budget allows, you will be in a stronger position if you instruct lawyers to advise and represent you.

9. Be realistic. Understanding the risks and appreciating that tribunal outcomes can be hard to predict will make it easier to manage expectations. It can also help the business make clear and commercial decisions.

10. If you are a witness in a hearing ensure you are well prepared. Giving evidence can be tough so preparing well and knowing the case will make it that bit less stressful!

At Pannone we have significant experience in supporting clients in defending tribunal claims from early advice through to representation at the hearing. If we can be of any help or you have any questions do not hesitate to let us know.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

A positive duty for employers to prevent sexual harassment

With effect from 26 October 2024 employers have a positive duty to prevent sexual harassment in the workplace. Here we take a brief look at what this will mean for employers…

•  The legislation will introduce a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees. This duty is anticipatory meaning an employer should not wait for a problem to arise before taking action.
• The duty is a continuing one meaning employers must monitor, review and refresh the steps they take regularly.

• Tribunals will be able to uplift compensation by up to 25% where an employer is found to have breached this duty.

• The Equality and Human Rights Commission have recently published guidance on steps employers will be expected to take. Here at Pannone we have developed a Toolkit to help employers comply with their obligation.

• A key aspect of the new duty will be the need to carry out risk assessments. An employer is unlikely to be able to comply with the duty if it has failed to carry out a risk assessment.

• Employers should take steps to ensure they have up to date policies and procedures.

• Employers must ensure employees receive frequent training on equality, diversity and inclusion.

• Steps should also be taken to encourage employees to raise complaints about harassment and be confident those complaints will be taken seriously.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – email stephen.mutch@pannonecorporate.com or click here

How to get managers to ‘buy-in’ to the HR process

A common problem HR experience is getting managers to ‘buy in’ to the HR process. Some managers see HR issues as something others should deal with. If you are responsible for HR in your organisation what  can you do to get manager ‘buy in’?

• Make the business aware of just how costly and stressful it can be to get it wrong. Very few managers look forward to the prospect of appearing as a witness in an employment tribunal!

• Ensure managers are aware that they could be personally named in a discrimination or whistleblowing claim and could therefore be personally liable.  

• Give managers the challenge of dealing with HR issues and push back if they try to avoid it. 

• Encourage managers to see HR policies and best practice as a management tool. Better use of these tools will lead to staff retention, boost employee engagement and get enhanced productivity from their employees.

• Promote the commercial benefits of getting the HR process right. Good HR practices promote diversity within the workplace and have been proven to help SME’s grow their business.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

Baby on board….

What are the things an employer needs to know about making an employee on maternity leave redundant….?

• Firstly, it’s possible. There’s a common misconception you can’t dismiss someone simply because they’re on maternity leave. This is untrue; it is perfectly lawful to dismiss someone whilst on maternity leave. It just needs to be considered very carefully.

• It is unlawful to select an employee on maternity leave redundancy simply because they will already be absent for a prolonged period and vice versa (i.e. not selecting someone because they are already absent).

• Be careful not to use selection criteria, such as attendance records or sales figures, that might be distorted by an employee’s absence on maternity leave.

• Be careful that any consultation process accommodates a pregnant employee’s absence from the office – offer remote meetings, or meetings at a neutral location or even their home.

• Any redundancy payments are based on their original pay and not any reduced level of maternity pay.

• Be careful of overcompensating – even a national law firm got in wrong by overcompensating how a pregnant employee was dealt with in a redundancy situation. The other employees successfully sued their employer on the basis she had been given unlawfully preferential treatment.

• In a rare example of lawful positive discrimination, employees on maternity leave who are ‘at risk’ of redundancy must be given first refusal on any suitable alternative roles – even ahead of other ‘at risk’ employees.

Careful advice is always needed when dealing with employees on maternity to avoid expensive and time-consuming legal challenges.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – email stephen.mutch@pannonecorporate.com or click here

I’ve hired a liar….!!

What are the things employers need to know when they discover that someone has been dishonest during the recruitment process….?

• If the lie is sufficiently serious, a dismissal for gross misconduct (i.e. without notice) is possible.

• However, if the employee has yet to start work, your safest option can be to dismiss with notice. Usefully only the part of the notice period that falls after their intended start date (if any) needs to be paid.

• Contracts of employment should always make it clear what notice period applies during the period before they start the job. This is because the shorter notice period that is stated to apply during their probation might not apply to the period before they actually start. 

• Lying about your qualifications to get a job can amount to a criminal offence.

• Any emails or messages exchanged about a candidate may well have to be provided to that candidate if they request them.

• Be very wary of asking an employee if they have brough previous employment claims. It may create an assumption that’s why you’ve not hired them – and that would be unlawful.

• Not disclosing a disability or a medical condition will almost never count as dishonesty. The onus is an employer to find out about a candidate’s medical issues and even then, only when it directly relates to their job duties. Employers should always avoid asking sweeping questions about a candidate’s health.

• Neither does not disclosing a pregnancy!

A well thought-out and considered recruitment process is essential for avoiding expensive and time-consuming legal challenges.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

The General Election is just around the corner and is expected to bring a changing of the guard, with Labour firm favourites to take over the post.

A change in government would bring a change in approach, and while the manifestos are light on the detail, they do give us an indication of where possible reforms may come.

Labour has pitched itself as the party that will ‘make work pay’ for working people, in a bid to improve both living standards for those in employment and economic growth. This includes stimulating more funding for training, skills and technology, to help make the UK more efficient and increase productivity levels – something we currently lag behind on compared to our international peers.

An important dynamic in the productivity debate is how workforces function and the legislation that sits around them. So what could we see from a Labour government when it comes to employment law and HR? Let’s look at the detail.

Zero hour contracts

Labour’s plan to ‘make work pay’ includes ending “one-sided” flexibility by banning “exploitive” zero-hour contracts and providing a baseline level of security and predictability for all jobs.

The party believes that too many working people face insecurity when it comes to their working hours, bearing all the risk and being unable to plan and live well. However, the inclusion of the word “exploitive” suggests that Labour has moved away from its earlier pledge for an outright ban on zero-hours contracts.

Under Labour’s proposals, everyone will have the right to have a contract which reflects the number of hours typically worked by reference to a 12-week period.  Workers will also be entitled to receive reasonable notice of any change in shifts or working time, whilst also receiving compensation (proportionate to the notice given) for any cancelled shifts. Anti-avoidance measures will be implemented where necessary to protect the integrity of these policies.

The plans will not prevent workers from the right to be paid overtime rates, nor will it prevent employers from offering fixed-term contracts such as seasonal work.

Basic day one rights

Labour has indicated that it wishes to address what it sees as the unfairness of the current system that requires employees to have two years’ continuous service* before they can bring a claim of ordinary unfair dismissal. The party believes this is an arbitrary requirement which is preventing people from changing jobs and enjoying the resultant wage increases that often accompany such moves, and preventing employers from being able to hire the best candidates.

The length of service required for employees to bring a claim of ordinary unfair dismissal has fluctuated since its inception as a right in 1971. The current requirement of two years’ service was introduced by the Conservative government in 2012 (the requirement remains 12 months in Northern Ireland).

An unintended consequence of the two-year bar has been a rise in the number of discrimination claims brought by employees seeking to find a remedy for the termination of their employment in its early stages. It will be interesting to see if such claims reduce if the right of unfair dismissal becomes available from day one.

Labour has assured employers that they will still be able to operate probationary periods, although how this will work in practice is not yet clear. Commentators have speculated that perhaps dismissals within an employee’s probationary period will be deemed fair so long as a set process is followed.

*While we wait for the outcome of the election, it is worth flagging a point that often catches employers out. Where an employee is dismissed with immediate effect and paid in lieu of notice, the statutory minimum notice period of one week is added on to the dismissal date, meaning that employees dismissed after 103 weeks (one week less than 2 years) can still claim unfair dismissal.

Discrimination, equal pay, and the menopause

Labour’s ‘New Deal for Working People’ plan also includes proposals to promote equality, by tackling the gender pay gap and providing support in the workplace for those going through the menopause.

Large firms will be required to develop, publish and implement action plans to close the gender pay gap. Similarly, employers with more than 250 employees will be required to publish information about ethnicity and disability pay gaps.

There is also a commitment to re-instate the ability for equal pay claimants to draw on comparators in other organisations, where workers’ terms and conditions can be attributed to a single source, and to put a stop to employers outsourcing services to avoid paying equal pay. Labour plans to implement a regulatory and enforcement unit for equal pay with involvement from trade unions.

In relation to the menopause, businesses with more than 250 employees will be required to produce Menopause Action Plans, setting out how they will support employees going through the menopause. For smaller employers, Labour will produce and publish guidance on measures relating to uniform, temperature, flexible working and how employers should record menopause related leave and absence.

Right to switch off

To address what it describes as the ‘inadvertent blurring of the lines’ between work and home life caused by the change in working practices following the pandemic, Labour has committed to bringing in a ‘right to switch off’.

This isn’t a new concept. We can look to a number of European countries which have already given employees some form of right to disconnect, including Ireland. A voluntary code of practice statesthat employees should not be required to carry out work outside normal working hours regularly and should not be penalised for refusing to do so. The code also sets out that employees must respect their colleagues by avoiding work-related contact outside of normal working hours.

Labour’s proposal indicates that it will follow a model similar to that adopted in Ireland, ‘giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.’ It seems most likely at this stage that a code of practice will be introduced which can be taken into account by employment tribunals on liability and compensation, but does not in itself create a standalone claim, much like the current Code of Practice on Disciplinary and Grievance Procedures.

Working in partnership with trade unions

Unsurprisingly, one of the areas of employment law that a new Labour government would address is industrial relations.

Its stated aim is to bring in a new era of partnership that sees employers, unions and government working together in co-operation and through negotiation, rather than what it describes as ‘the Conservatives’ scorched earth approach to industrial relations.’

As a starting point, Labour would repeal the trade union legislation brought in by Conservative governments over the past 14 years, specifically, the Trade Union Act 2016, the Minimum Service Levels (Strikes) Bill and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.  In particular, repeal of the Trade Union Act 2016 would potentially remove the requirement for at least 50% of all eligible members to vote in a ballot for industrial action in addition to a majority vote in favour, and reinstate the previous minimum period of seven rather than the current 14 days’ notice of strike action.

Referring to the disruption caused by strike action over the past two years, Labour believes its proposals will remove the barriers that currently make it harder for unions to engage in the bargaining and negotiation that settles disputes, and put the UK in line with high-growth economies that benefit from a more co-operative industrial relations culture.

A matter of time

If the polls are right and we have a new Labour government on 5 July, we expect the employment landscape to change quite quickly. Labour has committed to implementing its new its deal for working people within the first 100 days in government.  Over the coming months, it’s essential that businesses keep a watchful eye over a changing landscape to ensure their policies and procedures keep up with the changes.

If you’d like to discuss this blog in more detail, contact Fiona Hamor.

Photo credit: Chrisdorney

In this short article, Jack Harrington and Radhika Das from our employment and pensions team consider the use of mediation as a conflict resolution tool. They look at why employers should be utilising mediation, the benefits of doing so, and how to implement mediation in your workplace.

A recent Acas study found that workplace conflict costs employers around £30bn per year. It reported that nearly half a million employees resign each year as a result of conflict, costing employers around £2.6bn annually. A further 874,000 are estimated to have taken sickness absence each year as a result of conflict, at a cost of around £2.2bn annually.

The study found that while 35% of respondents had experienced an incident of conflict or ongoing difficult relationships at work, just 5% had taken part in workplace mediation. Of those who did go through mediation, 74% said their conflict was fully or largely resolved.

Mediation is a flexible, voluntary and confidential form of dispute resolution increasingly being used for resolving disputes in the workplace as an alternative to more formal procedures. A CIPD survey suggested that ‘mediation is an effective approach to help resolve workplace disputes [which] should be required before using the formal grievance process.’

Larger organisations have set up their own internal mediation schemes in order to train employees to act as mediators. Often, employers prefer to engage an external mediator. External mediators offer a number of benefits, including:

• Saving resources: setting up an internal scheme can be costly and employees often don’t have the time to commit to facilitating a mediation process.
• Conflicts of interest: it can be difficult for an employee to remain impartial and unbiased.
• Seniority: if those involved in the mediation are senior individuals within the business, it can be difficult for an employee to feel comfortable facilitating the mediation.
• Confidentiality: disputes often concern sensitive or confidential information. An external mediator can help to control the spread of that information within the organisation.

A simple first step on the journey to introducing workplace mediation is to include mediation in internal policies and procedures as part of the organisation’s approach to people management. For example, as the CIPD survey referenced above suggests, encourage mediation to be considered before the formal grievance process is used.

It is increasingly being recognised that mediation can be a ‘win-win’ approach – employees are able to reach a resolution without going through a lengthy and adversarial process, and employers are able to improve staff retention and avoid expensive tribunal claims. It is unsurprising therefore that the reported number of mediations carried out in England and Wales jumped from 2,000 in 2003 to 12,000 by 2018 and 16,500 by 2020.

Our employment and pensions team have qualified mediators who would be happy to assist you with implementing mediation as an approach to resolve workplace disputes. For more information, please contact jack.harrington@pannonecorporate.com.

We will be talking more about the benefits of workplace mediation and practical tips on approaching it at our next HR Club on 14 September 2023 – contact jolanta.jones@pannonecorporate.com to register your place.

In this article we look at why an employer may decide to instruct an external investigator to conduct a workplace investigation and how this process works.

The challenges faced by employers in the last two years have been significant and far-reaching. The Coronavirus pandemic has stretched resources, exposed employers to unexpected risks, and posed unprecedented problems in the workplace. Some sectors have really suffered during the pandemic, inevitably leading to more workplace disputes and grievances. On the flip side, some sectors have been incredibly busy and at times found their resources stretched.

As a result, we have seen an increase in the number of instructions we have received to conduct workplace investigations. In this blog we take a closer look at why this is and how our investigations team can assist.

Why instruct independent external investigators?

A common reason for instructing an external investigator is because the issues involve senior employees or board members. Instructing an external investigator can ensure a more rigorous and impartial investigation, politically it can also be easier to have an external law firm conduct the investigation. Employers may also instruct external investigators because there is a need to ensure the investigation is seen to be impartial, and to reduce the risk of litigation. Alternatively, it could simply be the case that the employer lacks the internal resources to conduct the investigation.

An added benefit of instructing a law firm to conduct the investigation is that it may be possible to ensure the investigation has the benefit of professional legal privilege.

So, how can we help?

We are regularly instructed by boards, HR teams, and in-house counsel to conduct investigations or to support and advise on an investigation. In the rest of this blog we take a brief look at how we can support workplace investigations and our team’s experience in this area.

Independent investigations – our approach

When we are instructed to carry out an internal investigation, we first take time to understand any relevant background and the nature of the issue being investigated. Once we have done this, we agree the terms of reference for the investigation with the client and, as appropriate, other interested parties. Whilst instructing us will certainly reduce the workload for a client’s internal teams, we will usually need some practical assistance in gathering evidence and arranging meetings with witnesses. However, other than that we can liaise directly with witnesses to conduct investigation meetings. Once we have concluded our investigation, we will prepare an investigation report and deliver that report to the client and any other interested parties.

Each matter is led by a senior lawyer with experience of contentious legal matters, advising in relation to investigations, and of conducting internal investigations.

Law firms and other professional advisers

In certain circumstances it may not be appropriate for an employer to instruct its usual external professional advisers to conduct an investigation. For example, the adviser may not be able to independently investigate the issue, or in doing so, there may be potential for a conflict. Our internal investigations team can be instructed by other professional advisers on an independent basis to carry out an investigation as a discrete, one-off instruction.

Our experience

Our team has decades of experience advising and supporting clients on workplace disputes and investigations. Examples of work undertaken by the team includes:

• Carrying out an internal investigation and review of our RSL client’s employment practices and procedures and reporting arrangements, following the death of a resident.
• Supporting an investigation into allegations of serious sexual harassment made by a junior female employee against two senior male managers. We reviewed documentation and CCTV footage, interviewed the complainant, a number of witnesses and the two male managers concerned, and assisted in the preparation of a comprehensive investigation report.
• Providing investigation support to a multi-national company’s internal compliance team. This involved supporting the company’s own internal investigators in gathering, reviewing, reporting on evidence, and providing support during investigation meetings.
• Undertaking an investigation in relation to allegations of sexual harassment in a local town council.
• Investigating grievances raised by two senior directors against each other.

Well planned, thorough, and impartial investigations are such an important first step in dealing with many workplace issues. In this blog we have hopefully given you an insight into when it may be appropriate to instruct an external investigator and the potential benefits of taking this approach.  If you would like to know more about our investigations experience or how we could help your organisation (or your client’s) please contact Michael McNally.

The mental and physical wellbeing of employees will be the biggest HR challenge for businesses in the next 12 months, as concerns grow about the welfare of remote workforces. 

More than half of HR professionals (55%) admit that the issue will be the main focus in the year ahead, with an overwhelming 83% saying they have concerns about the overall mental wellbeing of employees as a result of the pandemic.

According to our survey of HR professionals, carried out during a recent HR Forum, managing the ongoing COVID response, including the Coronavirus Job Retention Scheme (CJRS), redundancies and health and safety, was also a significant HR obstacle. Furthermore, managing change for future working ranked highly amongst HR professionals, as they continue to adjust to a new hybrid of home and office working, the impact on wellbeing, recruitment, flexible working and performance management.

The survey found that a significant number of respondents planned to make permanent operational changes in 2021, as a result of their lockdown experience, with nearly half (44%) intending to introduce flexible working, and a further 44% looking at a working from home model.

Jack Harrington, partner and employment lawyer at Pannone Corporate, commented: “The workplace has changed beyond recognition in the last 12 months, with what were sometimes seen previously as peripheral HR issues being brought to the fore as a result of the pandemic. 

“Unsurprisingly, the majority of HR professionals (94%) anticipate an increase in flexible working requests as restrictions are gradually lifted, with nearly half (44%) planning permanent changes to contracts of employment or HR policies, as businesses continue to adjust to the new ways of working that COVID-19 has forced many employers to adopt.”

Currently, all employees have the legal right to request flexible working – not just parents and carers. Employees must have worked for the same employer for at least 26 weeks to be eligible for making a ‘statutory application’. However, campaigners, including employment and discrimination barristers Ijeoma Omambala QC and Rebecca Tuck QC, presented their ‘Flexible Working Beyond a Crisis’ report, funded by Sir Robert McAlpine, to the Law Commission last month. This follows a six-year campaign to make flexible working a right for everyone from day one.