1. Being a Fair Employer
Darren Newman

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. Employment law is not a minefield