Top 10 tips to build the best defence at tribunal

Peninsula Team

October 15 2012

Do you take the risk of being taken to employment tribunal seriously? Here are 10 top tips to build the best defence at employment tribunal. 1.         Paper trail

Probably the most important rule to remember for an employer when carrying out any process is to document everything on paper so that a tribunal can see what you have done and when. Conversations can be forgotten very quickly - even overnight - if notes are not made and the date should always been included so that a chronology can be built up

2.         Follow contractual procedures

The contract of employment sets out expectations of binding behaviour that sometimes go above and beyond what the law requires as a minimum. Tribunals not only look to see that the law was complied with, but the contract too. If you say that you will deal with something in a particular way and within a particular timescale, then make sure you stick to it.

3.         Spend sufficient time investigating….

Tribunals are fastidious about reasonableness. You should clearly establish the facts before deciding whether formal action is necessary in relation to an alleged act of misconduct. If it does not appear that you afforded enough time and spoke to all relevant witnesses, the tribunal may not find that you could possibly have gained a rounded view of what happened.

4.           ….But not too much time

It is not good to be seen to be dragging your feet and not dealing with the matters in hand. When dealing with a grievance, for example, a tribunal may find that leaving matters unresolved exacerbated the employees’ problematic situation and entitled the employee to leave and claim constructive dismissal

5.         Consider special treatment of unusual situations

Although the law may set down parameters within which employers and employees must manoeuvre, an employer should be open minded towards bending the rules slightly in the employee’s favour in certain circumstances. The right to be accompanied to a disciplinary or grievance hearing is one such example. The law states that employees can only be accompanied by a fellow worker or trade union official. If the employee is particularly young, or does not have English as their first language, it might be considered reasonable to allow them to be accompanied by a family member who might be able to represent the employee better.

6.         Be flexible

Life sometimes throws up unforeseen circumstances for which there are no rule books – the most recent example being the riots across the country which have seen many workplaces temporarily closed or completely destroyed. In this particular situation, a flexible employer may give his employees options about how they might wish to treat the time for which they can offer no work e.g. annual leave, unpaid leave, making the time up.

7.         Establish a potentially fair reason for dismissal

If you are about to dismiss someone, ensure that you can establish a potentially fair reason for dismissal. The procedure leading up to the dismissal will most likely dictate what the potentially fair reason is e.g. a conduct dismissal will result from a disciplinary procedure, a capability dismissal would be the ultimate sanction from a capability procedure.

8.         Always give the right of appeal

The right of appeal should be given with any formal sanction given to an employee in case any new evidence comes to light which was not forthcoming before the original hearing.

9.         Talk to your staff!

Communication is key and a vital part in employees feeling that they have a voice and are an integral part of your organisation. Consultation on some matters is required, for example, when changing terms and conditions of employment, and early communication will help staff feel like they are actually part of the decision making process, lessening any resistance to the final outcome.

10.        Take advice

A huge part of a robust defence at tribunal is having a vast knowledge and expertise in employment law at your fingertips - so you should always call the Peninsula 24 Hour Advice Service! With the most up to date legislation and case law at hand, we can make sure that you do not fall foul of the latest employment rights available.

If your business is facing the threat of an employment tribunal, make sure you contact Peninsula Business Services in the first instance on 0844 892 2772.


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