Reducing the risk of an employment tribunal claim

14 April 2022 / Insight posted in Newsletter

Tribunal cases are prevalent and, broadly speaking, the reason there are so many is because both parties – the academy and the (ex-)employee believe they are in the right. When this type of stand-off occurs, the employee raises a tribunal claim and the process starts.

There is always a risk that an academy will be faced with disgruntled employees. This may start when the academy instigates a process in response to an employee issue, such as higher-than-average absence levels or poor performance.

In other instances, it may be because the employee has raised something that has been (or is perceived to have been) ignored or improperly dealt with, such as a grievance or a request for flexible working or unpaid leave

Each action, whether started by the academy or the employee, triggers a response. Where actions are instigated by the academy, such as those aimed at performance, conduct or absence issues, the academy should consider how the message is delivered, and be very careful over the language used – reducing the risk of the employee responding negatively simply due to poor communication of a valid point is vital.

Additionally, consideration should be given in advance to the steps and processes that will be followed, as well as the possible worst-case scenarios and what the employee may respond with. It is not uncommon for allegations to be made by the employee that are seemingly unrelated to the issue at hand. Schools must still deal with those issues to show they are undertaking a fair process. For example, where a flexible working request has been refused, the employee may raise a grievance regarding a culture of bullying by their manager. It is advisable to investigate this fully to reduce the risk of further escalation, rather than just dismiss it as irrelevant to the case in hand or as a side issue.

In practical terms, grievances can be very difficult for academies to investigate, particularly when the grievance relates to a peer as opposed to a manager. When two or more colleagues have experienced a disagreement, the school runs the risk of one of them feeling let down by the process and there is always the potential of a constructive dismissal claim being raised.

Whatever the situation, and whether initiating an action or responding to it, schools should consider how reasonable they are being and whether the employee is being reasonable too. A good rule of thumb to follow is for the school to put themselves in the employee’s position. Even in the instance when it is firmly believed that the employee has not been completely truthful or has behaved inappropriately, schools should maintain the highest standards of integrity.

Schools cannot completely eradicate employment tribunal claims but they can reduce the likelihood of getting one. Every letter that is written is not really written for the employee; it is written for their solicitor.

Would the solicitor believe the school to be reasonable and their client (the employee) to be unreasonable? If this is the case, the likelihood of it progressing to tribunal is reduced.

The employment tribunals system is incredibly busy. Where claimants (the employees) call for multiple witnesses or place the school and several of the leadership team as the respondents, cases can run into several weeks. In this event, cases lodged now may not be heard for up to two years.

Schools should always ensure they are taking advice from an expert. Ask the questions about both the associated risks and the options available when dealing with employee issues. Do not be afraid to challenge the advice and be brutally honest with your HR or legal adviser, telling them absolutely everything, even if you know of process errors or feel embarrassed to admit something. Again, the more honest you are, the more likely your adviser can provide workable options, carry out damage control and work with you to reduce any further risks.

 

Read more in Academies Plus – March 2022