Tribunal trouble: unfair dismissal and employment tribunals
According to Ministry of Justice statistics, single employment claims rose by 90% in the final quarter of 2017 compared with the same quarter the previous year. This increase follows the abolition of employment tribunal fees in July 2017.
Employees feel more empowered than ever to bring claims against employers now that they do not have the financial restraints they once had. But what does this mean to an employer and how can an employment tribunal claim against a company be avoided?
One of the most common reasons employment tribunals arise is dismissing an employee without a fair reason to do so, or if correct procedures and processes when dealing with a disciplinary or redundancy were not followed.
According to the government, a dismissal can be deemed unfair and challenged at tribunal if it comes after an employee: asks for flexible working arrangements; has resigned and given the correct notice period; joined a trade union; has taken part in legal industrial action for a maximum of 12 weeks; applied for maternity, paternity or adoption leave; exposed wrongdoing (also known as whistleblowing); needed to take time off work to attend jury service; or refused to give up their rights such as breaks.
Fair reasons for dismissing an employee include: if it is in the best interests of the business; if the employee is subject to a restriction that prevents him/her from carrying out the work he/she is employed to do (for example if a driver receives a driving ban as a result of breaking the law); if the employee has a long-term or persistent illness that has made it impossible for him/her to continue doing the job after receiving reasonable time to recover and looking at ways of supporting their return to work; if they are unable to do their job properly (for example, not being able to keep up with changes or unable to get along with other employees).
It is crucial that when dismissing employees for any of the aforementioned reasons employers follow the correct procedures and guidance as set out by Acas to avoid claims being made against the organisation. Sometimes employers have no choice but to make redundancies. This is never an easy choice but if there are no alternative options employers must ensure procedures are carried out correctly to maintain reputation.
If redundancies are handled incorrectly it can lead to an employment tribunal claim. Legal requirements must be adhered to and considered when making redundancies, including choosing the employees to be dismissed and how to handle the consultation process, to avoid claims of unfair dismissal or discrimination.
Employees are protected under the Equality Act 2010 and should be treated fairly. If an employer is found to be in breach of the law it could find itself at the centre of a discrimination claim at an employment tribunal.
The law states that individuals are considered discriminated against if it can be proven that the unfair act to which they were subject to was because of one or more of the following characteristics: their age; gender; race; sexual orientation; marital status; pregnancy or maternity; gender reassignment; religious beliefs; and/or disability.
If an employee feels they have been treated less favourably at work than another colleague due to a protected characteristic they may make a claim to the employment tribunal. So it is important to ensure reasonable adjustments are made to allow an employee with a protected characteristic to be treated as equal to their colleagues.
For example, employers might consider altering premises as far as is reasonably possible to allow the accessibility for a disabled employee to be as close to the standard as enjoyed by other employees without a disability. Failure to make reasonable adjustments could lead to a discrimination claim.
Compensation awards for discrimination claims are unlimited, so if a claim was lost employers could face a heavy financial penalty, depending on the severity of the alleged discriminatory behaviour or conduct. Disputes with an employee over wage payments could also lead to an employment tribunal claim if it cannot be resolved in the workplace.
To avoid such disputes ensure contracts of employment are up to date and signed by both parties. Contracts should include details of employee wages, holiday entitlement and hours of work and can be referred to if a dispute arises. They are important in ensuring employers are compliant should a complaint be made against it at an employment tribunal.
By Philip Richardson
Philip Richardson is partner and head of employment law at Stephensons. Tel: 01942 774192