Confidence is shaky, there are calls for radical change, businesses claiming that tribunals are unfair and expensive, that the Tribunal system needs radical reform and that business need protection from disgruntled employees who bring false claims of discrimination. Is it fair?
It is true to say that in any system there will always be those people who “try it on” and the strength of any system lies in the fact that they don’t get anywhere. But believe me Tribunals are also pretty damaging to the ex-employee as well, particularly where they have a valid case. Not every employer is fair and reasonable.
Like any structure, the tribunal system needs to evolve, it changes over time and it responds to feedback. That feedback can be from both the business and from the claimant. I am sure it will do that too. But the problem is that many businesses see resolution as confrontational and not as two parties seeking to come to some amicable agreement. That the next step after an appeal is a Tribunal. The Tribunal system should be seen as a last resort, not just as a matter of course.
But those calls for radical reform also mask some of the reasons why tribunal hearings are on the increase. The published Tribunal statistics for 2009-10 show that:
- claims received rose by 56% in 2009-10 compared to the previous year
- nearly a quarter of all claims in 2009-10 related to the Working Time Directive
- there was a 90% rise in multiple claims
In a recent CIPD Poll, 61% of respondents had experienced employees claiming unfair dismissal and tagging on a discrimination claim and 55% said they had experienced complaints against their business on malicious grounds. That same survey also found that nearly 70% of employers said they had no effective protection against employees making wholly unjustified claims. Leaving aside the issue of who made the judgement that the claims where unjustified, and they would say that wouldn’t they, those are worrying statistics.
Well it really should come as no great surprise that there was a rise in the number of multiple claims. The Equality Act moved from the old 6-strand approach to discrimination:
To the new 9-protected characteristics:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion and belief
- sexual orientation
The theory behind the change is that people can be, and often are, more, than one thing. The Equality Act specifically allows for dual discrimination claims but even then only on the grounds of two protected characteristics. For example a claimant cannot bring a claim on the grounds of being a “young Asian woman” as this would combine three characteristics. In those circumstances, the claimant could potentially bring claims on six different grounds (sex only, race only, age only, sex and race, sex and age, race and age).
If the Act actively encourages multiple claims and does little to remove the complexity or the time and expense for employers in dealing with them, then it seems strange to say that the first line of defence for an employer is to change the rules. Why rely on legislation being amended as a solution? – something that always takes time and involves politicians. Perhaps businesses, instead of painting themselves as helpless martyrs, should look at their processes first, and the way they train their managers, to ensure that the root causes for discrimination do not exist. That they put in place inclusive systems that clearly show their commitment to equality and diversity and help protect the business against tribunal claims by providing proof that they have taken reasonable steps. Moreover they need to show that this is working for them as that will create a continued improvement that’s needed.
The most common fault, and thus the biggest risk, is that procedures don’t always use the same set of basic criteria to develop and that your staff simply don’t follow them. And that shouldn’t come as a surprise either. People always take the simplest and quickest way, one that benefits them and not necessarily the business.
To reduce those risks you need to develop a template which covers the main core values of your business, the main policies and make sure that they meet the legal requirements, particularly under the Equality Act. Remember equality is not just an employment issue. It covers communication, goods and services and the built environment and therefore it affects every aspect of most businesses. The use of a template applies a commonality across all procedures, irrespective of the policy. It means good practice is captured; gaps are identified as against the template and this reduces risk and you can clearly demonstrate that you are taking reasonable steps to identify and eliminate discrimination or unfair practices.
Once you have aligned your procedures against the template you will need to make sure they still meet the policy objective and that the staff are properly aware of them, and trained where necessary. It is important that your staff deliver what you want and that and once those policies and procedures have been captured and documented any updates are communicated downwards.
But I can hear the moans already, that it costs money that it doesn’t actually help the bottom line or I’ll just run the risk. Well let’s look at three more 2010 facts:
- Disability discrimination – largest payout was £729,347 with an average award of around £52,000
- Sexual orientation discrimination – largest payout was £163,725 with an average of just over £20,000
- Sex discrimination – largest payout was £422,366 with an average of nearly £20,000
Running risks can cost money. But the most fundamental questions you need to ask yourself are:
Why would I condone discrimination? and Why would you want to be a bad employer?
Tribunals are in no-ones interests and while disputes will always arise, businesses are not always the victim. Being sure your systems and training address the common causes for claims and that you root out discrimination for your policies and practices, helps redress the balance and costs a lot less that some of the tribunal awards.