At the Employment Tribunal

The judge said it is not unusual that an employee does not know who his employer is, or that an employer does not know what staff he has! Last week I went to an Employment Tribunal with my client.  It was a learning experience for both of us.  No! It wasn’t my client, nor me, who was the Respondent.

Attending the tribunal confirmed that HR is an investment to save you money, time and heartache in the long term. 

Caterer vs Care Home + Local Authority + possibly Employment Agency

The first case was brought by a woman who worked as a caterer at a care home for 16 years prior to dismissal.  Her claim was against the care home and the local authority.  But wait!  The judge decided that a third party (a well known employment agency)  might also be involved and because they weren’t present to defend themselves he felt it only right to adjourn.  As there is a very long waiting list of claims to be heard the next available date is April 2013.

The judge told those present that it is not unusual for a tribunal to find that a member of staff does not know who their employer is, or for an employer to find that he has staff he didn’t know he had.  He went on to say that Regulations governing transfers between organisations – the TUPE regulations [Transfer of Undertakings (Protection of Employment) Regulations] – are quite complex and it is not surprising that confusion arises.

Cleaner vs Cleaning Company

So, we left Tribunal Room 5 and headed to Tribunal Room 2.  Sitting at the top table were the judge and 2 lay people – at least he had company whereas the previous judge had to make decisions on his own.  As with the first hearing, the Claimant was not represented, and neither was the Respondent.

The ex-employee, a cleaner, was a non-English speaking woman.   This was the second day of a 2-day hearing.  An interpreter was needed to ensure that the judge and panel, the MD who was the Respondent, and the Claimant, knew what each was saying – quite tiring for the interpreter and the judge said she did a tremendous job.

After listening to the evidence there was a lengthy adjournment, and when we returned to the room the judge stated that the case was not straightforward.  Before the end of her maternity leave, the woman had sent a letter of resignation to her employer but phoned soon after to ask to rescind it and requested to return to work on a part-time basis before the end of her maternity leave. Her requests were refused.  There were other issues that were discussed and taking them all into account the judge and panel came to the conclusion that the reason for termination was indeed resignation, and therefore her claim of constructive unfair dismissal was dismissed.  However, the Claimant was awarded compensation in relation to her sex discrimination claim.  The award was £3,000 linked to the fact that Statutory Maternity Pay was late on two occasions, making this direct sex discrimination.  This is a brief summary of the case and it was very interesting to hear how the panel came to their conclusion.

 Judge gives us his time

At the end of the hearing the judge asked my colleagues and me to remain and we were treated to a question and answer session, although not to discuss the details of the case but rather the proceedings.

5 Top Tips to be prepared in case …

1. Keep accurate HR records.  You don’t know when they’ll be needed.  Your contract of employment is always important but also evidence that you treat people consistently and fairly.  If you don’t know what and when things happen, how can you defend yourself?
2. Use your disciplinary and grievance processes.  However, deal with issues before ‘a molehill becomes a mountain’.  Use the informal route first. I have seen many a member of staff turn-around their conduct or performance when an issue is brought to their attention informally.  But if improvements are not made you may need to use your formal processes just in case you find yourself in front of a judge at a tribunal.
3. Document and communicate changes in the business.  If you are clear about the changes then your staff will be too.  It can avoid the issue as mentioned in the first case we heard where it isn’t clear who is the employer.  But having said that, it still may be unclear and it will take an employment tribunal to work it out!
4. Pay people when pay is due, or explain the issues if it looks like pay may be late.  Your staff should be paid what they have been promised – it’s part of your contact.  Any deductions, non payment, late payments may be viewed as unlawful deductions of wages.  In the case I heard, it came down to sex discrimination because the payment was for Statutory Maternity Pay.  People are usually understanding if issues have been communicated to them and they know the reasons.  For any deductions that are not the norm, these should be notified prior to staff receiving their pay.
5. Don’t wait for something to go wrong before putting into place good HR management practices. A big impact on a small business, besides the compensation payments that may be awarded by the tribunal, is the time taken to prepare and attend the hearings.  It may not only be the business owner or senior management who will attend the tribunal but other staff may be needed as witnesses.  The impact on productivity and morale in a business cannot be underestimated.  And, the hearing may be adjourned and continue on another day – more time away from the business!  The average unfair dismissal award is £9,000 (from employment tribunal figures for 2011-2012) and this can be a big expense for a small business.

Find out how we can help you to put in place practical HR management practices because prevention is better than cure.

We help to manage HR in your business from helping set up your HR records, to dealing with performance and absence, contact us. Based in Aylesbury, we also support businesses in the surrounding areas of Oxford, Thame, Berkhamsted, High Wycombe, and London.  We help businesses without their own HR department and those with an HR team who need help from time to time.  

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