Why do employers find themselves in the Employment Tribunal?

Poor conflict management

Employers often manage workplace conflict through formal employment processes, like grievance, disciplinary or anti-bullying and harassment policies. By the time these HR processes are required employees are already on the warpath and employers are seeking to minimise legal exposure. However, while legal exposure may be reduced, these processes do not resolve the underlying problems.

Managers, like most people, usually dislike confronting difficult issues until absolutely necessary. However, with training, managers can learn to identify the likely causes of workplace conflict, its early warning signs and how not only to reduce its effects but to resolve it early. Such management training, together with other processes, such as an effective workplace mediation scheme, can have a profound effect in creating a culture of conflict resolution rather than risk management, with a corresponding reduction in claims.

“Institutional” discrimination

Although discrimination still occurs in the workplace and can lead to litigation, it has become less common to see examples of overt, intentional direct discrimination. Attitudes within the wider community have moved on greatly over recent years such that anti-discrimination laws now more closely reflect societal views rather than leading them. Training and following HR policies on harassment, bullying, equal opportunities and diversity can reduce the number of these types of incident.

It is now more common to come across unintended, often indirect, discrimination. Partly this can arise because businesses do not devote sufficient time and resources to ensuring their training and processes are “up to date”, leading to inadvertent or unintended discrimination.

So, the key lies in training. However, training in this area has started to change in order to reflect the changing nature of the discrimination problem. Many businesses are now training employees in how to identify and counter unconscious bias; the idea that we are naturally drawn towards people who are like ourselves. This type of unconscious bias can lead to the unintentional creation of a circle of people who may share gender, racial or cultural similarities and in senior ranks this can have an exclusive and discriminatory effect. By raising awareness and developing strategies to counter this natural tendency, the scope of unintended discrimination, and the risk of claims, can be reduced.

Failure to involve HR at an early stage

The traditional view has been that HR should be notified and become involved when a problem arises, meaning early involvement meant speaking to HR as early on as possible where there is a performance or conduct issue. However, what is becoming clear is that HR should be involved much earlier than this developing and implementing strategies to avoid problems. With proper strategic input, taken seriously by businesses, processes and practices can be put in place that will reduce conflict, result in greater acceptance of change and avoid discrimination, with a resulting reduction in claims.

Since April 2014 a number of changes to claims issued and defended in employment tribunals have been introduced. As such, we created a guide on employment tribunal claims.

Dan Peyton is an employment lawyer and the managing partner of international firm, McGuireWoods.

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