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Tribunals

Tribunal hearings 2022-2023

Posted on: April 27th, 2022 by Halborns Limited

A road map has been published for employment tribunal hearings in England, Wales and Scotland for 2022-2023. The road map explains reforms underway to modernise tribunal processes and the role of video and in-person hearings in the future.

Video hearings are set to continue, but the good news for businesses is that the aim is to return to more in-person hearings where possible. Tactically, in-person hearings can be useful to focus a claimant’s mind and test whether they’re really committed to litigation given they’re more expensive, require travel and are generally a more daunting experience.

Video hearings will remain the default position for:

  1. Case management hearings
  2. Open preliminary hearings
  3. Strike out or deposit order applications
  4. Interim relief applications
  5. Final hearings for claims relating to unpaid wages, notice, holiday and redundancy pay

In-person hearings will be the preference for claims such as unfair dismissal, discrimination and whistleblowing (relying on a hybrid video/in-person approach where there is a backlog of cases). Parties to a case can apply to the tribunal for a change of format if a video or in-person hearing would be preferred.

If you’ve received a tribunal claim and need advice and support to manage the process and your defence, get in touch

 

This update is accurate on the date it was published (28 April 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Talking Tribunals #6 – New-found facts post-dismissal – can they help?

Posted on: March 23rd, 2022 by Halborns Limited

We’ll often be told that ‘it’s okay – the decision to dismiss the employee was a shaky one, but we’ve since discovered new facts that show the dismissal was fair’. 

In reality, when deciding whether a dismissal is fair a tribunal gives little consideration to facts found after a decision to dismiss (as confirmed by this recent Employment Appeal Tribunal decision).

Honest belief – for a dismissal to be fair you must show that you had an honest belief that the employee did whatever is alleged. That belief must be based on reasonable grounds and following a reasonable investigation.

At the time of your decision – if you can demonstrate each of the above elements at the time you made the decision to dismiss, then you’ll be on your way to a fair dismissal (although you’ll still have a little more to do including showing that the decision fell within a ‘band of reasonable responses’ before a tribunal finds as such).

Influencing compensation – you may be able to use new-found facts to influence any compensation awarded once a tribunal has decided a dismissal was unfair. But,arguments that those facts validate your decision to dismiss will not convince a tribunal that the dismissal was fair.

Getting the right advice early will help ensure your decision-making process is as fair and robust as possible – Intelligent Employment is here to help. Find out more.

 

This update is accurate on the date it was published (24 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Talking Tribunals #5 – Escalating disciplinary warnings

Posted on: March 15th, 2022 by Halborns Limited

If you think you can only escalate a disciplinary warning where the employee commits similar acts of misconduct, you may be taking unnecessary steps which could cause delay, inconsistency and possible unfairness. 

Obviously, a disciplinary warning must remain live in order to be escalated. It seems that confusion arises around whether the latest act of misconduct needs to be closely connected to the misconduct that gave rise to the most recent, live warning. That’s not the case. Provided the new issue relates to misconduct (i.e. the employee has chosen to behave in a particular way) any live disciplinary warning could and should be escalated if you establish the employee has behaved inappropriately.

Example – if an employee behaves in a way that amounts to harassment and receives a first written warning, then that same employee shouts at a customer – can you issue a final written warning or do you need to start with a first written warning again?

Answer – you can escalate the live, first written warning to a final written warning as both issues relate to acts of misconduct.

Ensure you check your own disciplinary policy and take advice if you’re unsure, but escalating a warning is a crucial step in avoiding potential problems at a later date. Get in touch if you need our support to refresh your teams on managing a disciplinary process. 

 

This update is accurate on the date it was published (16 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Talking Tribunals #4 – Soft on stereotyping?

Posted on: February 23rd, 2022 by Halborns Limited

If you’re concerned that your culture is one that accepts low-level harassment (top performers getting away with more than others might for example) and you want to do something about it, start with your policies and training.

If you treat harassment with a low-level warning (such as a written warning) and then decide that you want to make an example of the next act of harassment, you’re likely to find yourself with a successful unfair dismissal claim. To reset standards and expectations you’ll need to:

Communicate – share your diversity and inclusion policy regularly and test understanding;

Train – support your managers to approach decision-making consistently and in line with your policies;

Note – all of the aggregating facts (accurately and in detail) that ultimately lead to a final written warning or dismissal.

We can support with rolling out the necessary policies and training to help reset standards – get in touch to find out more. 

 

This update is accurate on the date it was published (24 February 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Talking Tribunals #3 – Is your people team too involved?

Posted on: February 14th, 2022 by Halborns Limited

For all the best reasons sometimes people team members or HR managers get a little too involved. It’s vital when you’re going through a formal disciplinary process that the individual making the decision does just that. Here’s what to consider:

Behind the scenes – sometimes we see that the people team have become so involved and keen to ensure that the ‘right decision’ is taken that they end up influencing the decision-maker to such an extent that any dismissal is tainted and unfair.

Support not influence – there’s nothing wrong with people team members supporting the disciplinary process but they must steer clear of influencing the decision.

Train disciplinary managers – ensure that you’ve trained the disciplinary manager to deal appropriately with the hearing so that they understand the legal framework and feel confident on the factors they need to consider when making their decision.

Evidence the decision – consider a checklist for disciplinary managers to work through such as our ‘issues to consider when dismissing for misconduct’ and ensure that they note their thought-processes throughout – this will be crucial in showing why any dismissal was fair.

We can support you to provide your managers with the necessary tools and training to manage the disciplinary process – get in touch to find out more.

 

This update is accurate on the date it was published (14 February 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.