The Employment Tribunal is where most HR professionals do not want to end up. Nevertheless, occasional visits are a helpful reminder of the backdrop to which much HR work is done and of what it can be like when things go wrong. Here are a few tips for HR professionals gleaned from my experience both as an advocate and as an observer at Tribunal hearings.
1. Stand up to be counted
In the everyday working environment, pressure is often put on HR professionals to achieve a certain result and managers often regard procedures designed to protect the company as a time-consuming side issue.
Faced with this pressure, it can be difficult for HR professionals to stand firm and make colleagues aware of the risks they are running. However, if you do not give your management colleagues what they may consider to be ‘the bad news’ early, they may well blame you if the company ends up losing a Tribunal claim or having to reach a costly settlement.
I have seen this happen most often in redundancy and misconduct situations. Sometimes, the desire of management to get an individual out of the business quickly has left those managers and HR facing the prospect of either a costly settlement, or an uncomfortable few days at Tribunal being cross-examined over an obviously flawed procedure.
I remember a long time ago, attending a case as an observer, where one senior HR manager with many years experience was exposed in cross-examination to the point of professional embarrassment. This happened because the individual in question had been too keen to achieve a result for management colleagues, rather than following correct procedures.
Of course, as far as possible, you want to help your colleagues achieve the aims of the business, not be a thorn in their side. However, in most cases, you will not be telling managers that they cannot take a proposed step, but that if they do, there may be a risk involved/commercial price to pay. If the manager is happy to take that risk or pay the commercial price of their action, then that is their decision, but you will have alerted them to the issues.
If they are good managers, they will value going into a situation with their eyes open and not blame you for your advice. If you think they might be blaming you just a bit, you might want to remind them that it is not just HR professionals who end up being witnesses at Employment Tribunals, but dismissing officers, appeal officers, disciplinary officers etc. at which point all their actions will be subjected to close scrutiny.
2. Create a paper trail
Most HR professionals are well used to keeping records of dealings between the employer and its employees. This paper trail is likely to be important at Tribunal. The Tribunal will expect a company to have an adequate paper trail. If there isn’t one, the Tribunal is likely to blame the company. An inadequate paper trail also gives the impression that the company is disorganised, which can only count against it.
Also, more paper means there is less need to rely on the memories of witnesses, which may be unreliable or self-serving. Before I was even a trainee solicitor, I was present at a criminal trial which illustrated very well the point about how unreliable even honest witnesses can be. The case involved an allegation that one football player had punched a spectator. The three neutral match officials, who had no reason to give anything other than true evidence, all gave different versions of what took place. One said the incident took place before half-time, the other two said it was after half-time and they all gave different versions of where on the pitch the incident had taken place and what parts those involved in the scuffle had played.
3. Organise preventative training
In many organisations, HR are consulted whenever employee management issues arise. To achieve this the culture has to be right. HR needs to be respected and the potential consequences of failing to manage people properly needs to be at the forefront of managers’ minds. Preventative training is a good step in this direction. Managers are more likely to consult HR if they are aware that there is a potential issue. For instance, training on the statutory discipline and grievance procedures and equal opportunities should help achieve this. Managers will not become experts overnight, but if they are alive to the issues and know when to consult HR, it may avoid a lot of costly problems later.
4. Stay involved
Where possible, it will be safest for HR to remain involved in ongoing procedures thereby keeping control of the procedure and the paper trail.
5. Beware of creating a ‘dependency’ culture
This is the potential ‘flipside’ of creating a positive culture where managers consult HR early. You need to be equally wary of those managers who rely on HR too much, so that they effectively abdicate responsibility for their actions. They need to understand that they may one day have to justify their decisions, so if they disagree with HR about, say, a disciplinary decision, they need to come to their own decision based on the evidence, not just do as HR says.
I have seen managers suffer under cross-examination in Tribunal when they have unquestioningly done as they have been told, when their own knowledge and experience suggested an alternative course of action was more appropriate. As they were not convinced that their own decisions were reasonable, they were never likely to convince a Tribunal that this was the case.
Nicholas Snowden is a senior solicitor at Clarkslegal.
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