The words employment tribunal are enough to spark fear into any employer’s heart. They are also words to be increasingly wary of since the removal of the controversial tribunal fee last July, which saw the number of claims increase 66% by December. Vikki Wiberg, senior lawyer at international law firm Taylor Wessing, shares her opinion on how employers can guard against future claims.
Whilst industry specific statistics are not available, the food and beverage (F&B) industry often finds itself at risk of employment claims due to the large number of staff employed and the often transitory nature of their workforce.
Some employers may not have faced a tribunal claim for months, or even years, since the fee regime’s introduction in 2013. Many HR professionals may be out of practice in how to manage claims, and junior team members may have little or no experience.
Here are some of the key factors employers need to consider in order to guard against future claims:
Consistency
In light of the decentralised and multi-site nature of many businesses in the F&B industry, it is important HR teams ensure uniformity in process and decision making across the country. Continuously discussing approach, with oversight from a centralised team in HR, ensures that similar decisions are reached.
Training
Bringing teams together for refresher training ensures your HR practitioners and managers are aware of current best practice. It provides a forum to share experiences and seek input from colleagues who may have recently dealt with similar issues. Often it will help your defence if you can show that your employees are up to date with the law and practice. Together with other actions, recent team training on preventing sexual harassment, for example, may demonstrate that you have taken reasonable steps to avoid liability for one employee’s actions towards another.
Retain evidence… but beware of disclosure
In the fast-paced F&B world, there may be less reliance on documenting decisions or retaining records. Limited documentary evidence makes it harder to defend a case. Where documents are created, for example in a disciplinary process, these should be retained. If a matter is handled by phone or in person, will you remember what was said or should you make a note?
Having said that, it is important not to create documents that could adversely affect a defence such as a flippant or potentially discriminatory comment sent by email. These are disclosable and can undermine an otherwise strong defence. The disclosure obligation is broad and can require extensive management time searching for relevant documentation.
Brand and values
The introduction of the online tribunal database in 2017 means claimants and press can access historic claim data to establish if similar claims have previously been lodged and their outcome. Judgments are not binding on other tribunals but their availability can increase the likelihood of new claims being lodged or make settlement difficult to achieve.
Consistency in defending claims or any settlement offered is important as this can impact on your brand. Consider how you would defend a high-profile discrimination case. Can your branch manager handle cross-examination of their personality? If your strategy is to settle all claims regardless of merit, will this make you a ‘soft’ target for more claims? Robustly defending some claims is important especially if they relate to your ethics or values. Bringing on board your PR team at an early stage can help address any negative fallout from a case.
Embrace the involvement of Acas
Since 6 April 2014, parties are required to comply with a one month mandatory conciliation period with Acas before claimants can lodge tribunal claims. Early conciliation has been shown to reduce claims progressing to tribunal. This makes it important to engage with Acas who can, especially if the employee does not have legal representation, help to resolve a dispute.
