Good policies, effectively implemented and consistently applied, play a key role in managing a successful workplace and avoiding employment tribunal claims. An employer’s policies frequently come under the microscope in unfair dismissal cases. How a policy has been implemented and applied will be looked at by a tribunal when it is assessing the fairness of a dismissal and considering whether an employer has acted reasonably in all the circumstances.
Employers should ask themselves whether their policies would stand up to the scrutiny of an employment tribunal if a claim is raised. Common pitfalls include employers failing to:
- follow the procedure set out in a policy
- act consistently
- communicate policies to staff
- train managers to implement them.
In the case Sakharkar v Northern Foods Grocery Group Sakharkar was sacked after the personnel department mistakenly entered an absence for him, which triggered the company’s policy of imposing disciplinary action against staff who exceeded a given level of absence within a year. Despite the error, the company argued the dismissal was fair in the light of Sakharkar’s level of absence. The Employment Appeal Tribunal EAT disagreed and held that his dismissal was unfair.
In the case Sinclair v Wandsworth Borough Council a local authority employee, who was an alcoholic, was dismissed for turning up to work drunk on two occasions. The employee had not seen the employer’s alcohol policy until the day before the disciplinary hearing. He was dismissed and raised an unfair dismissal claim. Although the employer had an alcohol policy in force, it hadn’t communicated it to the employee, nor told him he could lose his job if he didn’t comply with the policy. The EAT held the dismissal was unfair.
A good policy should provide line managers with the framework for handling complex issues and training them in how to use that policy will give them more confidence in dealing with difficult or sensitive situations. An effective policy can also assist an employer in the event of a discrimination claim by helping to establish that the organisation has taken all ‘reasonable steps’ to prevent one employee discriminating against another. In the case Casperz v Ministry of Defence the employer was able to demonstrate that its ‘Dignity at work’ policy, coupled with rigorous training and application of the policy, was sufficient to establish a defence to a sex discrimination claim.
Once they have devised a good policy, employers should ensure they:
- create awareness. Managers don’t always recognise situations in which a policy could apply. They don’t need to have full knowledge of every policy at their fingertips, but recognising a situation where a policy may apply is the first step.
- highlight benefits. A well drafted policy has benefits for both employees and managers. Employees have a point of reference in terms of the behaviour expected of them, and managers have a policy to refer to for guidance if required.
- share the responsibility. If an employer is going to invest in a policy, then it should get the best value from it. All staff and managers should be given the responsibility of following the policy, not just managers.
- document communication. Employers should keep evidence that a policy has been followed. For example, if there is a requirement for a certain number of meetings under a performance management policy, they should record minutes from those meetings and ask employees to sign their agreement to them.
- provide training. Training should be carried out when any new policy is introduced and refresher training should also be considered. Employers should keep evidence of the training, attendees and objectives. This will be useful evidence in the event of a claim.
- monitor and review. It is important to make sure all policies are fit for purpose. Employers should check whether they are still effective and appropriate for the type of business, whether there has been organisational growth requiring them to change, and whether they are keeping pace with changes in the law.
HR-Inform 20/10/2014: by Sarah Gilzean, an associate in the employment law team at law firm HBJ Gateley