Employment Tribunal fees have been scrapped – so what? - Guest Article by Tamasin Sutton

Over the last week you have no doubt seen several articles, headlines and opinions about the impact of ET fees being deemed unlawful.  If you haven’t, here’s a quick reminder…

On 26 July 2017, the Supreme Court ruled that the government had acted unlawfully and unconstitutionally in introducing fees of up to £1,200 in 2013 for employment tribunal claims.  The introduction of these fees was done so under the premise of reducing the number of malicious and weak cases, and on the face of it this worked.  Statistics showed 79% fewer cases brought over a three-year period. However, the trade union Unison, successfully argued that these fees hindered workers’ access to ETs and therefore interferes “with the right of access to justice under both the common law and EU law”.  Additionally, they highlighted potential unlawful discrimination against women and other protected groups.  You can read more about Unison’s story here.

So, what happens now? Does this open the flood gates for vexatious or weak claims as is feared by many a company and HR professional? Maybe, maybe not. What our focus should be on instead is ensuring that the people practices in our workplace are both robust, and most importantly, fair and transparent.  Dare I say it (and I’m not the first), but we need to be human in our approach and remember that our role as business leaders and HR professionals is to enable people to have purposeful work and be treated as human beings.  At this point I could highlight principles of social justice, inclusion and diversity, but instead I want to focus on the basics of employee relations. The removal of these fees will mean that people have access to address unlawful employer behaviour, and this is a good thing. Unscrupulous actions should not be accepted and there is a wealth of support and guidance to employers on how to get the basics right. The key thing always comes down to communication and having a clear stance on how you want to be seen as an employer.  Cue reflections on employer brand and how you strike the balance between business performance and enabling people to help you achieve this…

How to avoid an Employment Tribunal claim

Be fair. Be transparent. Be consistent. Be human.

Some people struggle with the consistency element, taking this too literally, being bound by their stringent and extensive policies on how to deal with situations. This generally means ignoring any aspect of common sense and judgement.  Policies are important yes, but as guidelines to ensure that key steps are followed, people have access to statutory rights and are treated fairly. A recent case I have come across has taken policy too far, ignored communication with the person and disregarded employment legislation completely.  Despite the individual asking for things to be dealt with, they haven’t been, and this employer has failed to deal with a statutory request within the timeframes set out in employment law. When forced to raise a grievance, the individual had to chase after 4 weeks for an update on when their grievance would be heard. This has resulted in increased anxiety and severe loss of trust and confidence in the employer to do the most basic of things, communicate with them and treat their concerns seriously.

Know what your organisational culture is, and embed these principles in everything you do.

This goes beyond the basics of communication and policy, and I’m talking about recruitment. There are many ways to recruit and debates aplenty around the benefits of strength based versus competency, but the key thing I am highlighting here is organisational or cultural ‘fit’. There is much research out there to point to benefits such as superior job performance, increased retention and importantly, greater job satisfaction. Being happy at work, and being aligned to a business’s core beliefs benefit the employer and the people working within the business. Katie Bouton (2015) wrote a good article in HBR about this.  I don’t want to simplify this process as it’s hard to get right, and comes down to a business really understanding what their cultural values are, and how to convey these. This is an article in its own right.

Review your policies and procedures and make sure people understand them!

I added the last bit as that’s generally where things go very wrong. The people who need to understand how to use the policies, don’t, and they don’t know who to speak to for support, or don’t have the relationships in place to do this. HR professionals – this is where you might need to up your game.  I won’t bang on about being a business partner, but I will say that you need to know your customers and they need to know who you are.  Before that though, ensure that any guidance documents are clear, easy to understand and you are confident that people know how to use them. Something simple like acknowledging a written grievance, conducting an investigation, sitting down with someone and helping them to understand where they might not be performing and asking how they can be supported.  These are all basic things that far too frequently don’t happen, and can result in a stronger case being made against a business. It’s still people who make all of the people stuff happen, so ensure that they are equipped and accountable for their actions.

Communicate. Communicate. Communicate.

Finally, communicate. You can never over communicate, and the means by which you do this are almost as important.  There can be restrictions such as locality and access but having a range of methods will ensure that you can be consistent in your messages and approach, and avoid wherever possible, misunderstanding or feelings of mistrust. This does of course mean that you need to be consistent in your messages, and ensure that the people involved in delivering them and engaging with people within the organisation, do so with clarity and meaning.

These are by no means the only areas you need to look at, but they are important. In light of ET fees being scrapped, employers need to look at how they engage with their people and how they want to be perceived.  Be human and do the right thing, as this is most likely to be the right thing for your business too.

Tamasin is a Chartered Member of the CIPD and an Independent HR Consultant working with companies to develop and support people focused practices.

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