Being a Fair Employer Darren Newman

Employment law risk There’s always a potential claim You can’t stop people suing you You can ‘manage’ the risk but never eliminate it You need to understand the risk and balance it against the needs of your business Its not just a question of right and wrong: Chances of getting sued Likely outcome Likely compensation Time and cost

Risk management strategy in employment law Just do it Where do you currently sit? Where do you want to sit? Never do anything that can lead to a claim

Reasonableness What matters is whether the employer has behaved reasonably – not whether the outcome is fair for the employee Tribunals should not substitute their own view for that of the reasonable employer For many cases there is a ‘band of reasonable responses’ – question is whether dismissal is within that band

Following Procedures Golden rule: keep your promises A tribunal will expect you to follow the procedures that you have set out in the handbook Where that is not possible, at least act in the spirit of the procedure

Natural Justice Adequate information given to employee Employee given opportunity to respond Employee’s response is considered in good faith Open minded Based on particular circumstances Taking into account mitigating factors

Consistency in dismissal Meerkat handler who glassed zoo colleague in Christmas party catfight over a llama keeper wins her unfair dismissal case but only because BOTH women should have been sacked Daily Mail 18 November 2015

Consistency Consistency is fundamental to our sense of justice What matters is consistency of approach – not being a slave to precedent Should take account of all circumstances: Employee’s attitude Mitigating circumstances

Sending a coherent message Consistency also about creating a shared understanding of what is expected Employees cannot be expected to know that conduct is serious if they see it tolerated in others Putting up with misconduct can undermine effectiveness of an employer’s policy Danger areas: Absence reporting, timekeeping, breaks, following procedures

Performance management Consistency also important in managing performance The Halo Effect and the need for proper measurement Being consistent about the standard needed – from an early stage Not putting off that awkward conversation Genuinely trying to solve the problem – not jumping through hoops prior to dismissal

Elements of reasonableness Rational – based on a reason Coherent – possible to explain reasons for decision Predictable – in line with the way similar issues have been dealt with in the past Proportionate – balancing the needs of the employer against the impact on the employee

Two sides to every story Listening to what the employee has to say is crucial to the reasonableness of any decision To give a proper explanation employee needs to know: what he or she is accused of what evidence is being considered also needs adequate time to prepare an explanation Right to be accompanied also an important part of this

Fair consultation Consultation crucial in change and redundancy Consultation v negotiation Consultation takes place before a decision has been taken Involves listening to and engaging with a response to your proposal There must be adequate time to respond And adequate information to allow employee / representative to formulate response

A reasonable employer Is clear about what is expected Can explain why rules and procedures are as they are Takes account of individual circumstances Keeps an open mind until facts are established Listens to both sides of a story Makes clear decisions based on facts

Crisp Decision Making Clear standard, clearly communicated Aligned with business objectives Dealing with issues promptly and decisively But Outcome is not automatic Listen to both sides of the story

Employment law is not a minefield