Employment tribunals: the very name
can inject fear into both employers and employees. When they were
first introduced in the late 1990s, carrying on the work of
industrial tribunals, they soon established the myth that it was a
good way to take an employer to the cleaners, and many made
headlines for the large amounts of money settled on employees.
Changes were made and a voluntary Code of Practice, drawn up by the
Advisory Conciliation and Arbitration Service (ACAS), was
introduced to simplify the procedures and make them fairer to both
sides.
Tribunals still play a large part in
disciplinary and grievance procedures in the workplace and can
involve companies and their employees in a great deal of work, cost
and often stress. Consequently, they are seen as a "last-ditch
attempt" to sort out an issue and most employers will go to
considerable lengths to settle matters before the tribunal
stage.
Employment law is complicated at the
best of times and the rules and regulations change frequently, so
it is vital that those who deal with HR issues keep up to date with
any changes and know they are on safe ground with their procedures.
An HR issue that leads to an employment tribunal can quickly divide
a company into an "us and them" situation which can be extremely
damaging, especially in a smaller business where everyone is busy
and no-one has the full training to cope expertly with a difficult
HR problem.
A situation that leads inexorably
towards a tribunal can interfere considerably in a small business’s
day-to-day operations, and should a tribunal find in favour of an
employee, it can lead to significant sums of money being paid out
that most businesses can ill afford. It can also be a very
stressful time for all concerned and seriously disrupt what may
have been a perfectly harmonious relationship before the incident
occurred.
For these reasons companies should try
to sort out an HR issue before it gets anywhere near a
tribunal.
That, however, can be difficult
without a good knowledge of employment law and in most businesses
no-one has the time to keep abreast of all employment law changes.
An outside agency, such as Mentor, can make an enormous difference
in a tricky situation, not just because of the up-to-date knowledge
possessed by Mentor Advisers but also because of the amount of
support, both practical and emotional, that they can bring.
DIFFICULT
SITUATION
This was the case when Emma Maclellan
found herself in the middle of an increasingly difficult situation
with two of her company’s employees. Luckily, she had already
signed up to Mentor and was able to get in touch with Maureen
Paterson, an Employment Law & HR Consultant, who immediately
came to her aid.
Emma’s father and his business partner
had bought the company from its previous owners. Based in
Caithness, the company is now called NUMAX Energy Services but at
the time it was NES Engineering Services, providing a general
engineering service to the oil and nuclear industries, local
government and local businesses. Emma took on the job of HR
Co-ordinator and Maureen helped her with various HR procedures as
the company developed.
"It wasn’t long before I became aware
that there were difficulties with two employees, who were sons of
the previous owner," Maureen explains. "They were causing trouble,
being rude and aggressive to staff as well as management, and
problems arose over their contractual terms. Despite having been
given enhanced salaries, they wanted their pension entitlement as a
lump sum, not a monthly payment, and they wanted their bonuses in
cash without any deductions for NI or tax.
"Emma explained that the company could
not pay the pension as a lump sum – it would mean making other
staff redundant – and payment of bonuses without tax and NI
deductions is against the law. She asked them to come to a meeting
to discuss the matter but both men immediately went off sick. One
of them contacted Emma and was extremely abusive on the phone.
"During all this we came across some
papers which indicated that one of the sons had been running his
own business in competition to NES Engineering for some time,
despite the fact that his contract stated quite plainly that he
could not do that. So the company decided to take disciplinary
action."
DISCIPLINARY
PROCEDURE
Emma, with Maureen’s help, continued
asking the men to come to a meeting but every time received a
letter from their solicitor to say they couldn’t attend because of
sickness. Eventually the company went ahead with the disciplinary
procedure and the men were dismissed. They appealed against their
dismissal and the company set up meetings on two occasions to
discuss the situation with them, but, again, they did not turn up.
Eventually, the appeal was heard in their absence and, as there was
no new evidence, the dismissal was upheld.
The men were given three months to
lodge an application for an employment tribunal but no application
was made. Then, a month after the expiry date, in January 2011,
application papers were served on NES Engineering. Alan Philp from
Mentor’s litigation team lodged a protest at the lateness of the
application and asked for a hearing for Preliminary Determination
on 21 April to determine whether there were good grounds for the
late application. He contacted the men’s solicitor, pointing out
that their chances of winning were very slim and the solicitor
advised his clients to drop their whole action. Luckily, the men
saw sense and dropped their case.
Emma, understandably, was delighted.
"The whole thing was extremely upsetting and I hadn’t been sleeping
properly for about a year," she explains. "I had been dreading the
hearing in April, the thought of having to face them, and it was
such a relief to hear that they were not going ahead with it."
"The men were very well warned all the
way through this that they had to attend meetings," says Maureen.
"And the company really bent over backwards to try to hear their
side and their grievances but they just refused point blank to come
to any meetings."
"I couldn’t have faced any of it
without Mentor," says Emma. "They’ve given me such good support.
It’s not easy to pick up the phone to people you don’t really know
and tell them about what is happening, but from the very beginning
Maureen and her colleague June Fraser were very understanding and
never criticised anything I had said or done. They really knew what
they were talking about and they always put my mind at ease. They
didn’t even mind me phoning at 9pm on a Friday, which I did quite
often. I can’t recommend them highly enough."
"Tribunals are seen as a last resort
to sort something out, but too often employees see it as a way to
get back at their ex-employer, which often wastes a lot of time and
money," adds Maureen. "The present Government is looking into some
of these processes and one suggestion is that money will have to be
lodged up front. But it’s vital that companies get the proper
employment law advice and follow the required procedures. If they
are signed up to Mentor, we can keep them up to date by summarising
changes in legislation for them. It means they can concentrate on
what they do best – their business."
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Mentor
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how
NatWest
Mentor could
help your business in situations like this and many
others, contact
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to Mentor, please call the Advice
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