What those employees forget is that most Employment Tribunals adopt a commercial approach to industrial relations. While a Tribunal will always be keen to see fairness, it will acknowledge a company’s right to manage its staff and to do so within the confines of its finances.
Very often Tribunals can be avoided by following a few basic checks.
• Deal with matters as they arise. One of the most difficult areas in which to manage people is performance. It is sometimes hard to look someone in the eyes and tell them they are not doing their job well. If though, a piece of work is not acceptable, for example it has led to a client complaint or failed a quality audit, then it is easy to raise the issue there and then. The evidence will be in front of the employee and they usually take on board what management are saying.
• Communication. Accept that where there is a breakdown in communication, at least at the first instance, there is often blame two ways. The person giving the instruction may not have spoken clearly, the person receiving the instruction might not have been listening properly.
• A willingness from management to be balanced and accept that at times all parties need to work on a problem, will always look good. If faced with a failing or hostile employee, management come out in a favourable light. It is not necessary to win the “did / didn’t” argument. Rather you rise above it. This will often diffuse the situation, but if not, a Tribunal will naturally warm to such a measured approach. On this basis:
• Build up your paper trail – emails and meeting notes. When the employee then claims that they have suffered a history of abuse and unfair treatment, the documents speak for themselves.
• If matters do have to reach the formal stage, follow the applicable ACAS Code. Crucially, it is about “the rules of natural justice”. Allow the employee to answer back and take account of what is said. Speak to other people who might have worked with the employee. Take an overall view.
• A manager who offers the opportunity of continued employment in a final written warning, looks very good before a Tribunal. A warning which says “we could have dismissed based on this event, but would like to give you a last opportunity to remedy matters” will give good grounds for defending an unfair dismissal claim should there be a second default.
• In a redundancy situation, again, the reasonable measured approach to the employee’s concerns always pays dividends. So long as the Tribunal can see that you have genuinely applied your mind to the issues, the redundancy is unlikely to be unfair. A good way of doing this is to set out your reasons for your provisional decisions and invite the employee in writing to question and query these in the forthcoming redundancy meeting. There can then be no argument that consultation didn’t take place. Importantly, by having followed the process, the employee is more likely to feel that they were able explore all avenues internally and will be less likely to seek a legal challenge.
So far this advice has been about the cure. Of course prevention is best. The final top tip has to be: use your probation period carefully. 9 times out of 10 the awkward squad of employees is made up of people who cannot accept criticism. During the probationary period, don’t hesitate to give forthright honest criticism about the quality of their work. If this is flung back at you or you are met with dark glaring silences, an alarm bell should be ringing. Be prepared to extend the probationary period (ensure your contract has a right to do this) and don’t allow it to expire unless confirmed by you in writing. If need be use it to make a dismissal.
