HR professionals enjoyed an eye-opening experience with the return of our mock employment tribunal event.
Don’t be a victim of assumption when it comes to your employment policies and practices. This was just one of the many valuable insights that delegates learned at SA Law’s mock employment tribunal, which coincided with the announcement of an unprecedented increase in cases since last July’s abolition of claimant fees.
Our mock employment tribunal gave HR professionals an opportunity to see the typical challenges they might face if an employee brings a claim against them. This not only helps organisations to defend claims more effectively, but also enables them to take preventative measures. (You can click here to download the ET process flowchart).
Senior employment experts Chris Cook and Keely Rushmore played the parts of the claimant and the respondent’s witnesses in our live tribunal. Representing them were barristers Gillian Crew and David Mitchell from Ely Place Chambers, and our tribunal panel was led by Michael Salter from Ely Place Chambers, who benefits from many years of experience as a tribunal judge. Belinda Hamilton of Feltech and Mark Marenda of GSK assisted on the day as additional panel members.
The claimant, Joanne Trubisky, is a 23-year-old female Field Services Administrator for independent cable networking company Fox-Trestman. She worked in the Field Services team with four other employees of a similar age, under the leadership of Thomas Brady – a significantly older manager.
The incidents that led to the claim took place on one of the team’s regular inspection visits. During the drive home in a mini-bus, one of the team members took a picture of Joanne while she was asleep, which Thomas Brady then posted to the team’s private Facebook group. At a team dinner that evening, Joanne also claimed that Thomas Brady propositioned her for sex. She considered these two incidents amounted to the final straw after experiencing many months of lewd behaviour. She resigned and, having sought legal advice, made claims of harassment, sex discrimination and constructive unfair dismissal.
However, this was not an open-and-shut case. Complicating the situation was the team’s longstanding reputation for day-to-day banter, which was often rude, lewd and of a sexual nature. This was evident from the Facebook group postings, with which Joanne would often join in. As such, she was accused of simply reacting badly when the jokes were turned on her. Furthermore, the words used by Thomas Brady in the alleged sexual proposition were open to interpretation.
A further perceived complication was Joanne’s desire to resign immediately without having complained (even informally) about her treatment within the team at any point, and without using Fox-Trestman’s grievance process. Ms Trubisky claimed that this was impossible because the procedure cited she should speak to her manager, who was the person against whom she had the grievance.
Going into the tribunal, it looked like Fox-Trestman might have the slightly stronger case. However, employment practices emerged that put a very different spin on the situation.
After the opening submissions from the counsel, the claimant took the stand for a tough cross-examination by the respondent’s barrister about the incidents that formed the basis of her claim, and her perspective on the Field Services team environment.
This was followed by an equally tough cross-examination of Thomas Brady by the claimant’s barrister. This covered the incidents and team environment, but also the general employment practices at Fox-Trestman. On the latter issue, there were searching questions for Shelia Loggains, the HR Lead for Fox-Trestman, who had recently taken over the role from the outgoing HR Manager.
It was the employment practices that the tribunal panel members were particularly concerned about, even going as far as saying they were “stunned” at how poor they were when it came to the tribunal’s verdict. When shown Fox-Trestman’s harassment policy, neither the claimant nor Mr Brady had seen it. When Mr Brady was quizzed about his training, it transpired he had received no training other than his induction when he joined the company ten years ago. Sheila Loggains confirmed that she was equally surprised at the lack of training at Fox-Trestman, and was addressing this since taking over the role. However, she pointed out that all policies were included in the staff handbook.
After retiring to deliberate, the panel returned to deliver its verdict and all gave the audience the opportunity to share their views about who the case was in favour of by using voting cards (see images below).
The panel’s decision was that the alleged proposition for sex could not be confirmed because the words Thomas Brady had used were open to interpretation. Nor would the harassment claim be upheld because the purpose of the doctored photograph was not to cause an intimidating, humiliating or degrading atmosphere or to violate Ms Trubisky’s dignity, however the claim was upheld on the alternative basis that it had that effect.
Further, the accusation of sex discrimination relating to the photograph was awarded in the claimant’s favour because the way it had been doctored was conduct likely related to Ms Trubisky’s sex. Furthermore, the constructive dismissal claim was also upheld because Fox-Trestman was not considered to have a functioning grievance policy, based on Shelia Loggains’ testimony that no one had ever used it. This, and the fact that Thomas Brady had not received adequate training to be responsible for his clearly questionable behaviour, resulted in Fox-Trestman being forced to pay damages to the claimant.
When an employee brings a claim against the behaviour or decisions of another employee, two entities are effectively defending that claim. Thomas Brady was the first entity, as it was his actions that formed the basis of the claim. Fox-Trestman was the second entity, being the employer that has responsibility for the behaviour of its employees (unless it could successfully establish it had taken all reasonable steps to prevent this sort of behaviour).
This division was a key insight gained from the mock tribunal. The tribunal’s first question was ‘is Thomas Brady at fault?’ The panel found that he was. Therefore, the panel moved to the second question of ‘had Fox-Trestman taken all reasonable measures to ensure Thomas Brady was aware of his employment law responsibilities?’ The lack of training and awareness about policies meant that they had not. Therefore, it was the organisation that was deemed to be at fault. To read our guide to bringing a claim to employment tribunal, click here.
Key learnings from SA Law's Mock Employment Tribunal:
Here is a quick summary of the insights that the mock tribunal delivered:
- Employment policies are a critical cornerstone of your organisation, but don’t assume that simply having them protects you against risk. A good policy is simply a first step in the journey of shaping your organisation’s culture of compliance.
- Culture is key. Managers need to lead by example, and good practice should permeate from the top levels of an organisation.
- Training is an essential component of this journey, and one that tribunals look for evidence of. Induction training should be given to all employees on joining, with regular refresher courses on key issues. Managers warrant special training courses on key aspects of their role for in respect of claims which can arise - such as equality and diversity. You must be able to demonstrate that your organisation takes a conscientious approach to training that ensures employees are aware of the issues and know how to handle them.
- Review your policies regularly in line with changes in employment law and new cases. Your policy evolution should also be guided by a regular assessment of your organisation to mitigate risks before they become claims. For example, a prominently-placed post box with anonymous slips that ask what employees are concerned about can be a simple way to gather insight. Or, even a climate survey where you ask employees to detail things that are good/bad/need improving in their workplace. Once you have the results act on them.
- If you introduce or update a policy, then simply emailing it around and expecting employees to read it is not enough. Whether through training or another internal communications/awareness method, you need to ensure that employees have engaged with the policy and understood how to put it into practice.
- It also helps to go further than your policies, which are often written in dry language, to avoid misinterpretation. For example, have a conversation with employees about what harassment can look like, and make sure they know what is and isn’t acceptable behaviour both during and outside of working hours and both online and offline.
- Make sure you have a functioning grievance policy, which means one that is actually used to resolve disputes. Our mock tribunal showed an organisation that only pays lip service to its grievance policy, which can be common in larger ventures.
- Keep records of anything that could be related to a claim. If something occurs informally, such as an employee making a seemingly off-the-cuff remark about a colleague’s behaviour, follow it up with an email to establish a formal paper trail. This minimises the risk of an employee accusing your organisation of not listening when they were flagging up a problem.
- If your organisation is facing a tribunal claim, then make sure that all those involved prepare comprehensive witness statements. When it comes to the tribunal, referring to events that you didn’t include in the witness statement will work against you and can destroy credibility.
Overall, a proactive approach to your policies, practices and culture increases your chance of avoiding a claim, which almost inevitably leads to a domino effect of damage.
Naturally, there is the financial burden of paying the claimant’s award and (potentially) their legal fees, plus your own legal fees. There is also the possibility of a financial penalty paid directly to the Government of up to £5,000 per instance of failing to comply with employment law which is in addition to any award and fees.
There can also be a range of mounting indirect costs resulting from a judgment against you, which is always posted publicly on the UK Government’s website. A high-profile claim could easily result in customers turning away from your organisation in protest, and there could also be an impact on staff morale that reduces productivity and increases staff turnover costs. Some tendering exercises will require you to disclose any adverse tribunal decision, which can impact your ability to win the work. Not to mention the potential damage to reputation and brand.
Unfortunately, the abolition of tribunal fees for claimants last July has caused such a huge surge in claims that the tribunals are having trouble keeping up with the demand. Global events such as the growing profile of the #MeToo movement are also thought to be having an impact.
The best advice is to get ahead and make sure your organisation lives by strong policies. Assess your risks, and review and update your policies accordingly. Remember that only by taking “all reasonable measures” to ensure employees are aware of their responsibilities can you avoid liability for any inappropriate actions they make.
You may also want to consider taking out Employment Tribunal Claim insurance. Click here to find out more.