• Opinion: Removal of tribunal fees brings risk – and lots of opportunities

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  • 31 Jul 2017
  • Comments 3 comments

HR must act now to create open cultures and access to informal dispute resolution – or face a rise in tribunal cases, writes Arran Heal

UK employees have had the ability to take their employer to an employment tribunal (ET) restored. This is to be celebrated, not least because in introducing ET fees (and defending this to the last breath), the government had used its power to control access to justice, which was a poor role model for employers that wanted to ensure their staff had a range of options to resolve disputes.  

The number of claims fell by 70 per cent after the introduction of fees in 2013, and there’s a concern that they may rise by a similar number. So what can HR do to prepare and respond to the fact that ET claims are ‘back on the menu’?  

The reality is that HR and employee relations professionals did not see a 70 per cent decline in complaints about conduct and pay, because, sadly, employees were not experiencing a 70 per cent improvement in the behaviour of their employers. The management and resolution of complaints, and the organisational culture that drives those complaints, has never stopped keeping people managers awake at night.

From HR’s perspective, what has been restored is risk: risk to their employer’s reputation, financial risk and brand risk. Temporarily silenced and unhappy, employees are going to make their voices heard in the tribunals. It is time to put the Donovan principles back centre stage in your policies and procedures: ensure your employees and managers have access to ‘easily accessible, informal, speedy and inexpensive justice’. This means bringing the common organisational values of accountability, respect, fairness and equality back to the ET playing field.

This is the time to revisit your commitment to your values; ensure that conduct against these values is measured, rewarded and challenged, not just at appraisals and personal development reviews, but through the everyday discourse in an organisation. Work with your top team so that they know poor conduct that is not in alignment with your values will be challenged and is not acceptable. Give your most abrasive managers coaching and support. 

Encourage people to speak up early and informally. The earlier all the stakeholders know of a problem – before positions are entrenched and defences become immovable – the easier it is to resolve it. If you don’t have a staff-based harassment or grievance officer network, introduce one now. If your managers are uncomfortable having conversations about their own and others’ conduct, train them now. If your organisation does not measure its grievance culture, aim to get good benchmarks in place before Christmas. 

Ensure informal resolution is easily available to your employee base. This should not be a poorly supported HR initiative but an embedded part of ‘how we work around here’. This is an effective and fair means of reducing claims, and saving the human and financial cost of conflict.

Are your investigation processes and managers up to the task? Are investigations carried out by trained, confident and skilful people who have the rapport and impartiality to be seen as credible by those involved in the grievance or disciplinary? Hearing managers – typically a weak link in the employee relations chain – need to understand the principles of natural justice, balance of probability and weight of evidence.

Work towards creating a ‘clear air’ culture – where no inhibitors or blockages to individuals speaking up, expressing opinions and challenging the status quo. Your workplace should be one in which ideas can be shared and challenged, and people can speak up without fear of reprisal. Organisations that achieve a clear air workplace understand that it’s a continuous process of having a plan and sticking to it, looking deeper at informal resolution processes, building manager awareness and developing the soft skills and awareness of everyone in the company. But achieving it can improve an organisation’s ability to innovate and problem solve, increase productivity and efficiency, and reduce the risk of negative conflict and its associated costs.

HR teams around the country need to seize this opportunity; where organisational leaders may perceive increased risk from the Supreme Court’s ruling, there is an opportunity to invest in our people, processes and policies to deliver the results we are all striving for.

 

Arran Heal is managing director of CMP Resolutions

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Comments (3)
  • The basic fact remains regardless of the decision on fees, the tribunal will still vet claims and if an employer has done no wrong, they have nothing to fear. 

    There will be an initial rise in claims that arise from genuine cases of poor employers, but I feel that this will wain once some employers can no longer be so blasé about treatment, safe in the knowledge that there was a 70% decline in claims as stated in the article. 

    I work for both sides and hope this decision benefits both. 

  • How I agree with Chris Wilkinson's comment. The article seems to be automatically assuming that every organisation who is taken to a tribunal is in the wrong. We are an IiP organisation and very proud of that fact yet someone still took us to tribunal despite following all our procedures to the letter - informal hearing, formal, mediation, ACAS mediation, etc. We wouldn't agree to their ridiculously large settlement fee beforehand (they were defending themselves) and they lost their case as we suspected they would because they didn't like what we were saying and were hoping that someone would agree with them. Although the employee paid a fee for the tribunal, we were the ones left counting the cost in preparation time, travel, days out, etc, etc and no costs could be claimed. Everything is geared up for the vexatious employee these days. I'm not saying all organisations are perfect - but usually, you will find a genuine mistake is behind a lot of tribunals but it seems that the rulings made are there to remind employers that they need to jump through hoops rather than treat their employees fairly which I believe most organisations do.

  • I am incensed by this article. Firstly the latest figures show an over 30% increase in papers being lodged with Tribunals. Secondly to say that the 70% drop in Tribunal cases was not matched by a 70% improvement in the behaviour of the employers implies that there was a need for such a level of improvement. I do not believe there is one shred of evidence to support this assertion. Throughout my career in Corporate life I never came across an organisation with a culture of grinding down the employers. Now we provide outsourced HR services to SME's (the vast majority of businesses in the UK) and I can assure you that those business owners just want a fair days work in return for fair pay and conditions. Finally, and I know the article was written for an HR Magazine, but please can we remember that very few businesses have or could afford an HR person let alone a department. As a profession we need to be seen to be more supportive of such organisations.