Is it really fair that an employee wins a tribunal case purely on the basis that his employer forgot to file some paperwork? Well actually that happens and in a recent case, we'll never really know who should have won. The employer concerned neglected to follow strict procedures and guidelines, meaning that before they were even able to state their case, the employee won! It makes you wonder how this happened, how this employer fell into the trap of allowing an employee to walk away with a successful unfair dismissal claim and the employers money, just because they hadn't followed the rules correctly. What actually happened in that business for the employer to neglect part of this critical procedure?
Well, it's easier than you might expect for SME's to find themselves in a state of flux over the rules and regulations they must follow and this is why. When employers carry out investigations of wrong doing within their companies, they actually need a big team around them, for instance they need, an independent figure carrying out the investigation itself, they need witnesses, a separate person to conduct the hearing and another independent person to conduct the appeal – UK law deems this necessary in order to protect everyone involved. None of these key people must of course be linked to the accused or the accuser in any way. The point is, to be able to construct a case where every fact has been taken into consideration, where emotion is taken out of the equation, so a fair conclusion can be brought about.
Within a small company of say, just 5 employees, how is that even possible? The accuser might be the line manager as well as the business owner, so when the business owner might be deemed the appropriate person to undertake the investigation in a larger company, what is a small employer meant to do? It brings me to the question, is employment law now discriminating against small businesses?
This situation is all too common, but there is help available for SME's and it's vital that they understand not only the basics, but they know how to deal with these complicated and very important matters, in a way that means they can bring their claims to court appropriately.
Here are just a few tips to keeping this process legitimately on track;
Understand the procedure. Ignorance is absolutely no excuse in an employment tribunal.
Be completely open minded about who might be to blame in any given situation. In a small company, gossip spreads quickly and assumptions are easily mistaken for truth. Think 'facts only' and collate evidence around those facts for a completely impartial case
Bear in mind that tribunals are extremely stressful, not only to the employee, but the employer too, not to mention costly. Time line events and stick to them to avoid wasting money and resources.
Find a way to ensure your company is handling the matter with complete impartiality. There are experts available to do just this, to support you and make sure you don't fall into a trap before you even get to tribunal.
Whether it's fair or not, every day, companies are damaging their reputations and suffering severe financial blows as a result. Here at Park City, we see this more than we'd like.
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