1. Avoiding discussions regarding poor performance
An employee may believe they are doing a great job but their line manager may think otherwise. We cannot assume that others see things the same way as us. If performance is not up to scratch and needs to be improved, this should be addressed early on. Meetings held and notes taken to provide clarity. Specific examples should be given. The employee should leave the meetings knowing exactly what is expected. As long as information given is accurate, can be measured, is reasonable, can be evidenced and is relevant to the job then this will provide a defence should an eventual dismissal be challenged as unfair at tribunal.
2. Making assumptions about those on maternity or family leave
You cannot leave someone on maternity/paternity out of any consultation process and you shouldn’t select an employee for redundancy because they are on statutory leave. You do need to include them in the pool for selection if you are making a group of employees redundant. An employer incorrectly awarded higher points to an employee on maternity leave as they thought this “special treatment” was the right thing to do but it resulted in a claim for damages of £123,000 from a male selected for redundancy as a result. Those on maternity or other statutory leave do have some enhanced rights in a redundancy situation so please seek advice from your HR Consultant.
3. Not taking action to prevent harassment
Not only can the financial penalties for harassment be damaging but also the potential harm to your business reputation. Managers should not tolerate a culture of any behaviour which could be viewed as unacceptable. A female banker nicknamed “Crazy Miss Cokehead” by male colleagues was awarded £3.2 million for sexual harassment. The tribunal decided that she had faced “disgraceful” behaviour and suggested that her manager should have been dismissed for gross misconduct due to his offensive emails.
4. Not consulting properly when TUPE applies
Failure to consult at all or for long enough can lead to a “protective award” being made to each employee of a maximum award of 13 weeks’ pay.
5. Brushing off “banter”
Some banter has to be stopped as it can be dangerous and lead to expensive claims. This was evidenced in the recent case of age discrimination against an older employee close to retirement where he was called “Yoda” and had his number plate changed from “OAB” to “OAP”. Management failed to act and could have avoided a six figure financial penalty for his successful claim.
6. Getting investigations wrong
Best practice during a disciplinary investigation is to keep an open mind and gather all facts through a thorough investigation. Not to look for corroborating evidence or verification is dangerous – you should also try to have a separate person take the investigatory evidence to the disciplinary meeting and again a different person hearing any appeal. All evidence available must be collected, not just what the investigator thinks he/she needs. The investigator must follow up on any defence offered or the investigation could be flawed.
7. Not minding your language
Managers inadvertently say the wrong things that can get a Company into trouble! “Pull yourself together” instead of dealing with a grievance properly is one example. If a manager is not sure how to answer a question it is better to say you will get back to them and then seek advice from one of our HR Consultants. Going off script and winging it as well as misconstrued texts and emails can all be used as evidence against your Company at tribunal.
8. Not following the disciplinary procedure correctly
Any disciplinary procedure you follow ideally should mirror the ACAS code of practice. It is very easy to make simple mistakes like not warning an employee beforehand what the consequences of a disciplinary meeting could be. This does not permit them to defend themselves properly and could lead to legal action. Any finding of unfair dismissal can be increased by 10% for failure to follow the ACAS code of practice. There is now a financial penalty paid to the Government of up to £5,000 if you lose at tribunal as well as possible costs being awarded against you.
9. Failing to issue or renew contracts
Contracts of employment should be issued within 2 months of starting, failure to issue a contract can attract up to 1 month’s pay. If there is a fundamental change in terms, their contracts should be renewed or a written variation of contract issued. Your HR Consultant can help you with these but it should be seen as an opportunity to make sure that all the wording in the contracts is still appropriate.
10. Not taking HR advice
Failing to get the right HR advice could increase the risk of facing a tribunal claim. This is particularly essential in long term sickness absence cases where tribunals will be closely examining all medical and other detail. Not taking advice from someone suitably qualified or not getting current advice can be costly. A manager’s doctor suggested he should avoid stress following a stroke but an employer dismissed him as they felt no job was without stress. He made a full recovery 11 months later and received almost £400,000 in a successful disability discrimination claim as his employer had failed to make reasonable adjustments based on the doctor’s advice. Please do contact your HR Consultant for advice on every issue.
By Joanna Dobie, Senior HR Consultant, Alcumus