Posted: Friday, 4 January 2019 @ 13:43
As mediators and employment lawyers, we are seeing a real increase in constructive dismissal claims and that’s bad news for employers as they are costly to defend and disruptive to manage.
Constructive dismissal claims are not the easiest to prove as the onus is on the employee to prove. However, rec,ently, it was recognised by the Employment Appeal Tribunal that trust and confidence could be destroyed by a single act. And if a breach does happen, employers should be warned that any 'olive branch' cannot rescue a breach once it has gone over the edge.
At a practical level I have in the past 10 days seen two constructive dismissal claims considered by the Courts. Inevitably these cases have different reasons for going to Court, but there are some key themes which account for employees taking action with perhaps the most important one being that employees are more likely to sue nowadays. Furthermore some employers still lack good people managment skills in a difficult market.
For the organisation, these steps will help prepare and protect them:
Practice employee engagement - Those firms which have good employee relations tend to be in a stronger position for resisting Tribunal claims as they have better relationships with employees and can negotiate out of any difficulties. Being able to demonstrate a record of good employee relations also undermines the legal prospect of the claim succeeding.
Keep the dialogue open – The temptation when things are going wrong is to cut off contact with the employee in question or cut them out of decisions. Don’t! Keep talking and try to resolve issues.
Offer employee coaching, counselling and support – Firms which provide employee support programmes are in a better position than those that do not and have less risk of a legal claim being made against them.
Control performance management - Do not be over zealous here. One of the issues of performance management is that if it upsets a member of staff, it can lead to a grievance made against a manager. The key thing is that managers have good written processes and records in place to show that they have been fair.
Be fair when disciplining staff - Ensure that any form of disciplinary action is fair. Do not take steps which can be criticised later. Make sure you have procedures in place, that managers and supervisors are trained and understand the procedures and that they are followed. Keep records. All of this helps firstly prevent a claim but also with defence, if it comes to that.
If things go wrong, negotiate effectively. As a lawyer I have seen too many lawyers take an over-zealous(complacent) approach to negotiation. This increases the likelihood of an employee taking action and ultimately the organisation facing an Employment Tribunal award.