10 top tips for avoiding employment tribunal claims

Employment laws generate a lot comment and it is unsurprising that businesses are often confused about what they can and cannot do with regard to their staff. Getting things wrong can be time consuming, expensive and in many cases can be avoided by following a few simple steps.    

Here we explore the basic things you must get right. 

The interview – questions you should not ask

Obviously you will be keen to appoint the right person for the job and should ask challenging questions to test a candidate’s aptitude for the role.  However, you must not ask about an applicant’s pregnancy, plans to have children or their caring responsibilities.  You should also be extremely careful when asking a candidate about their health, unless you need to establish whether the applicant will be able to carry out an important part of the role or whether there are any adjustments that are required either to the interview process or the role itself.

This is because you must not make assumptions about an individual’s commitment or ability to do the job based on a protected characteristic as this could expose the business to a discrimination claim.

Make pre-employment checks

You can only employ an individual if they have the right to work in the UK. All employers have a duty to prevent illegal working and are required to undertake pre-employment immigration checks on all staff they wish to employ to ensure that they have the right to work in the UK. 

If you employ someone who does not have the right to work in the UK, you are liable to pay a fine of up to £20,000 per illegal worker.  However, if you have undertaken appropriate pre-employment checks you should be able to establish, what is known as a “statutory excuse” and avoid paying a fine.

You must not make assumptions about an individual’s right to work in the UK simply because they have an English sounding name or British accent or because they have a “foreign” name or accent. 

If you only carry out checks on people who you believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, you are likely be accused of discrimination. 

Get the documents right

All employees are entitled to receive a written statement setting out the terms of their employment within 2 months of their start date (and from day one next year).  This must include certain prescribed information including the job they will be doing, their place of work as well as information about their hours, pay, pension, holidays, notice and the disciplinary and grievance procedures that apply.

It is helpful to draft the employee’s duties and job title as widely as possible as this will provide you with more flexibility if you do need to make changes later on.  Similarly, you might also want to include a mobility clause which will (provided it is reasonable) allow you to move the employee to a different work location.

For more senior appointments, you may need to consider imposing restrictive covenants (to protect the business after the employee leaves).  These have to be carefully drafted as they will be carefully scrutinised by the courts if a dispute arises.

It is also important to have clear, specific and well drafted policies. Employees must be made aware of the policies and know where to find them (such as in a staff handbook for example).

Know the key employment rights

Some rights, such as the right to claim unfair dismissal are only available to employees (not workers or agency staff) and, generally, require at least two years’ service.  Others do not.  For example, there is no minimum service for breach of contract claims, or for working time breaches.  Workers and employees can pursue such claims from day one.

It is particularly important to understand the basics of discrimination law as it is available to people applying for work, as well as those you actually employ.  It is unlawful to discriminate (i.e treat less fairly) because of a protected characteristic.  These are: age, disability, pregnancy and maternity, race, religion or belief, sex, sexual orientation, gender reassignment or marriage and civil partnership.

Your employee does not necessarily have to have a protected characteristic - the law also protects those who are ‘perceived’ to have one (for example, someone who is wrongly believed to be gay) or those who are associated with someone with a protected characteristic (for example, a husband or daughter who has a disability).

The rights associated with discrimination are complex.  The best advice is to make sure that you and your staff treat each other with respect.

Use probationary periods for new staff

It is sensible to expressly set an appropriate probationary period to allow you to ascertain whether the candidate is suitable for the position.  Three months is probably appropriate for most jobs, although more senior appointments may have a longer period.  Remember – you can extend the probationary period if you still have concerns about the employee.

Don’t just leave a conversation about the individual’s performance to the end of the probationary period.  It is sensible to provide feedback and support to new recruits on a regular basis to give them an opportunity to improve, before deciding to terminate their employment unless it is very clear that the employee is not up to the job.  

Follow procedures

Do not let problems fester.  Make sure that you have reasonable procedures for dealing with common issues such as performance, misconduct and absence and that your staff know what to do if they have an issue they want resolving.  You should be consistent in your approach and follow your stated procedures.

Your staff will be entitled to be accompanied by a trade union official or colleague at any formal process, such as a disciplinary or grievance hearing.

Guidance is available from the ACAS Code of Practice on disciplinary and grievances.  They also have a helpful guide on challenging conversations and how to manage them.

Investigate complaints

If your employee raises a complaint – either formally or informally, investigate it promptly.  This is particularly important in respect of alleged discrimination or bullying. 

Ask the employee making the complaint to give you as much evidence as possible such as email exchanges or to identify other people who can corroborate their version of events.  Obtain statements from all relevant witnesses before you decide what action to take.  Meet with the employee again to explain the outcome of your investigation.

If, following an investigation, you believe that disciplinary action should be taken against an employee, refer the matter to a different manager.

 Dismiss fairly 

Do not dismiss someone on the spot, no matter how grave the misdemeanour appears to be.  To dismiss fairly, you need a combination of one of the five potentially fair statutory reasons, plus a procedure that is fair and reasonable in all of the circumstances.

The five potentially fair reasons to dismiss an employee are: conduct, capability, redundancy, breach of a statutory restriction (such as employing someone illegally) or for some other substantial reason (such as a restructure that is not a redundancy or a dismissal at the behest of a 3rd party such as a customer etc).

Once you have established one of the potentially fair reasons, you must act reasonably before dismissing for that reason.  Generally, you will be expected to investigate before holding a disciplinary hearing.  This will usually involve giving the employee any evidence gathered and giving him time to prepare for the hearing.  At the hearing, the employee should be given the opportunity to put his side of the story forward and to challenge the evidence. 

Any penalty should reflect the seriousness of the act.  If you dismiss, you must give the individual an opportunity to appeal the decision. 

The ACAS Code of Practice on Discipline and Grievances is a good starting point and you should have your own disciplinary policy which follows its principles.

 Keep written records 

You may have done everything ‘by the book’ but if you cannot provide evidence to support your decisions, it is more difficult to show you have acted fairly if your decisions are challenged or the employee brings a claim against you.

Written records will help to show that you are a reasonable employer and have done things correctly.

 Know what to do if things do go wrong 

All businesses face problems from time to time.  If you cannot resolve a problem speedily, take advice at an early stage from a lawyer or HR specialist because behaviours or disputes that become entrenched are much more difficult and costly to resolve.

Irwin Mitchell’s IMhrplus service provides a fixed price employment law service delivered by lawyers. If you are interested in finding out about how we can support you please contact Rachel Hetherington: rachel.hetherington@irwinmitchell.comor: 44 (0)121 203 5355 for a no obligation quote.