Every care provider must have breathed a sigh of relief when, back in July 2013, regulations came into force requiring claimants to pay towards the costs of bringing an unfair dismissal claim before an employment tribunal. Vexatious claims made by disgruntled former employees are surely the stuff of nightmares for employers and nowhere more so in the care sector. Yet, while no one could argue that the decline in number of tribunal claims made over the last 18 months has been dramatic, is there a danger that care homes may be resting on their laurels?
It has been widely reported that the number of single claims brought to employment tribunal has reduced by 70 per cent year-on-year, during the period of April to June 2014, with potential claimants deterred by typical fees of up to £1,200. However, Acas figures suggest that while the overall claims have fallen considerably there has actually been a significant increase, 9.2 per cent, in the number of claims that reach the stage of being heard. Meanwhile, there have been numerous legal challenges to the system and Labour even outlined its intention this autumn to reform the employment system if elected so that ‘income is not a barrier to justice’.
Against this background, care providers can ill afford to be complacent. After all, we can be sure those former employees who are not deterred by the introduction of fees are unlikely to be bringing frivolous claims. Having parted with a substantial amount of money, these claimants will surely be bitterly determined to pursue their claim to the very end.
Every year CHIS/PrimeCare Insurance works on claims for its insurance partners, which are made by care providers to cover the cost of employment tribunals brought by disgruntled former employees. While perfectly legitimate under the terms of our insurance policy, these claims naturally can cause premiums to rise at renewal. Disgruntled former workers may complain that they were unfairly treated, that their employer did not follow its own policies or that they were the subject of discrimination.
However providers can take heart that, whatever the nature of the grievance, employment tribunals are usually avoidable in all but the most extreme (and often groundless) circumstances. Robust and transparent management procedures together with effective staff communication and professional, timely responses to any complaints can often resolve the matter before it escalates.
Top tips for preventing grievance claims
Consider Investors in People (IIP) accreditation
The most straightforward way to minimise the risk of having to defend an employment tribunal claim is to ensure that your staff are content, well-trained and loyal. Gaining Investors in People accreditation is an excellent means to help develop towards this goal.
Develop complaints procedures
It is important to pre-empt complaints, considering how to deal with them before it reaches that stage. The proper response to an aggrieved former employee begins even before the complaint is made. Now considered good business practice, it is vital to establish well-drafted complaints procedures that aim to resolve issues quickly, fairly and confidently; it may be advisable to consult, possibly via your insurance policy, a lawyer for assistance.
Put these procedures in writing, distribute to all members of staff and follow them consistently and to the letter when a complaint is filed. This way, if the employer-employee relationship breaks down and a member of staff leaves acrimoniously, a process is in place for dealing with any disputes.
Identify genuine grievance issues
If any employee, especially a recent leaver, makes a complaint through the proper procedures, identify whether it is a genuine grievance. If so, remember that by carrying out an investigation, you will be viewed favourably if the issue does eventually lead to an employment tribunal.
If you decide not to investigate a grievance, the ex-employee may take matters further, their first point of redress of course being Acas. It may be possible to resolve the dispute through that process of early conciliation.
If not, and there is merit in the complaint, this is a suitable stage at which to negotiate a settlement – before the claimant needs to pay the tribunal fee and side-stepping the risk of substantial legal costs to the employer of defending a claim.
It goes without saying that complaints relating to discrimination of any kind must be treated seriously. If the complaint eventually leads to an employment tribunal, it is far better to be able to prove that you took action.
Conduct thorough investigations
If an ex-employee makes a complaint through the proper channels and the issue is deemed worthy of investigation, a designated investigator should be appointed. It is essential that this individual is considered to be fair and is trusted both by other employees and by management.
The investigator should conduct a thorough investigation in accordance with the complaints procedures, interviewing other appropriate interested parties and witnesses to come to an unbiased conclusion. This information must be retained in the personnel file of the complainant. This means giving both the former employee and the employer a chance to put their cases forward, talking to witnesses and reviewing all evidence.
Communication is a key skill when dealing with disgruntled former employees. Keep claimants regularly updated with investigation results and be as detailed as possible in the findings, explaining the steps taken and reasons for coming to any conclusions.
When employees make contact reply promptly; do not close down the channels of communication. Take care not to adopt an angry tone, stay calm and professional at all times.
If the investigation finds the complaint has merit, detail what you intend to do to rectify the situation and prevent the same issue from recurring. It can be beneficial to offer a settlement since this will almost always cost less out of court than through an employment tribunal. In some circumstances, tribunals have the power to increase the compensation paid to a claimant by as much as 25 per cent, should they rule against the employer.
Even if the investigation finds that a complaint is unsubstantiated, do consider offering a small gesture. In this way the disgruntled former member of staff will have a small victory and it may be enough to placate them without the risk of any further backlash.
In these straitened times, it is imperative that care providers take all possible steps to mitigate any financial risk to their business. Despite the downward trend in employment tribunal claims, the horizon is not clear by any means. Care homes would be wise to shore up their defences, rather than risk being set adrift.
David Waters is Managing Director of CHIS/PrimeCare Insurance. firstname.lastname@example.org
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