There was a time when employment law was full of new inventions – not all of which universally welcomed by employers.
Looking back at my own 25 (and counting) years advising these employers, I have seen the introduction of such novelties as rights to a maximum working week, paid holidays and the minimum wage.
That’s not all.
Perhaps the most significant innovations have been in equal opportunities with protected characteristics now ranging well beyond plain old race and sex to cover age, sexual orientation, religious belief and (most significant of all) disability.
The government continues to review and expand employment law, but the most dramatic recent change is not some shiny new legislation. Instead it relates to how these rights are enforced.
Accordingly, our recent talks have focused on “the return of the” employment tribunal.
This was the topic at a business breakfast with the Press and Journal on 30 January. And it’s proved so popular that we’re doing it all again at this Friday’s fully-booked employment café at our offices in Aberdeen, and next month in Fort William.
The number of employment tribunal claims dropped dramatically in 2013 with the introduction of fees for claimants.
In 2017 however, the courts decided the fee regime was unlawful and today, as a direct result, the number of individual claims have all but doubled. And they’re likely to continue to increase.
This is not one of these academic niceties where lawyers debate abstract concepts, tribunals are the coal face where real employers and their advisers are challenged on real decisions taken day-to-day in the real workplace.
And they have something of a mixed reputation.
Many suggest they are biased in favour of employees. I have also heard it said the results are a lottery.
Neither is true.
It may seem harsh, but if that’s the advice employers are being given, then it’s time to change advisers. Tribunals are courts with highly experienced employment judges. They do not flip coins to decide outcomes.
There are also steps employers can take to protect themselves from claims or, where this isn’t possible, things they can do to defend themselves robustly, if they choose.
Here's one tip relating to written procedures.
It’s important to have them, and in most cases they should be followed. But using procedures is a start to a sensible and defendable process — it is not the only requirement. Employers still have to make a balanced judgment call and ticking various procedural boxes will not itself provide protection against claims.
This doesn’t mean you can’t take decisions that protect your business. It also doesn’t mean it’s always too risky to dismiss an employee.
Instead it means that employers should not just follow procedures.
We should always step back and ask “is this reasonable” and “should I do more."
If you go the extra mile and then reach a carefully considered outcome, you’ll be in a far better position if you ever find yourself defending your business at a tribunal.
Our Aberdeen café is fully booked, but you can join the waiting list.
We will also be returning to this topic — along with some other favourites — in future events including in Fort William on 21 March with Lochaber Chamber of Commerce. Watch this space for updates.
To discuss a workplace issue, or support for a tribunal, contact the employment team.
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