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Will Employment Tribunals be Lenient if I have made a Genuine Mistake?

Many organisations are having to make difficult decisions at the moment about their workforces, which may include contractual changes, restructures and redundancies.  If doing these without professional HR advice, or the...

Written by: Tracey Salisbury, Senior HR Consultant MCIPD

Written by: Tracey Salisbury, Senior HR Consultant MCIPD

Tracey has worked in HR in a variety of sectors including banking, healthcare, charity and government. For the past 6 years has worked in consultancy, advising businesses of a range of sizes and industries on all their HR needs. Tracey is MCIPD qualified, and also holds IOSH and Job Evaluation accreditations. She leads on our Outplacement Service, using her skills in professional CV writing, interviewing and job searching to support employees post-redundancy or post-termination.

Tracey has worked in HR in a variety of sectors including banking, healthcare, charity and government. For the past 6 years has worked in consultancy, advising businesses of a range of sizes and industries on all their HR needs. Tracey is MCIPD qualified, and also holds IOSH and Job Evaluation accreditations. She leads on our Outplacement Service, using her skills in professional CV writing, interviewing and job searching to support employees post-redundancy or post-termination.

Many organisations are having to make difficult decisions at the moment about their workforces, which may include contractual changes, restructures and redundancies.  If doing these without professional HR advice, or the support of an HR department, it is very easy to fall foul of the law.

If you need help with an aspect of staff management, or HR processes, please contact us or click here for information around what support we can provide.

Some classic examples of where this might happen – which are topical at the moment are:

  • Breach of Contract – making contractual changes without consulting and reaching agreement with your employees
  • Not adhering to Statutory Timescales – when making redundancies for under 20 people, there is no statutory timescale involved, as long as you are “reasonable”. Once you are looking at 20+ dismissals over a 90-day period, it is essential that you follow the statutory timescales
  • Not including Notice Periods in your Calculations – often employers want to dismiss an employee with under 2 years’ service, but do not take into account that this 2-year period includes notice. If an employee is on 1 months’ notice, your dismissal would need to take place before 1 year and 11 months (not 2 years)
  • Failure to Consult – when making redundancies of any size, there is a legal obligation to consult. Failure to do so could result in costly claims of unfair dismissal
  • Not dealing with Performance Issues during Probation – once an employee is confirmed in post, their terms and conditions may change and be more favourable than probationary terms. If you have concerns during the probation period, it is essential to deal with these during that timeframe

Something we see often is employers who have acted in good faith, and genuinely tried to do the right thing – however through lack of knowledge, understanding or research fall foul of statutory requirements.

I am frequently asked “will the tribunal understand that I tried to do the right thing?” Unfortunately, the law is clear that statutory processes must be followed, and naivety is not a defence at tribunal.  Although of course the tribunal will look at your reasons, motivations etc – it will not change the facts that processes have not been adopted.

Preparation, research and an understanding of the minimum requirements are key before you adopt any formal procedures or commence any conversations with your staff.   The costs of not doing so can be vast, along with potential reputational damage and legal action.

Please contact us if you need any support with any aspect of restructure, redundancy, performance management or any employee issues – we can provide you with the knowledge, resources and documentation to make sure your actions are fair and compliant.

Written by: Tracey Salisbury, Senior HR Consultant MCIPD

Written by: Tracey Salisbury, Senior HR Consultant MCIPD

Tracey has worked in HR in a variety of sectors including banking, healthcare, charity and government. For the past 6 years has worked in consultancy, advising businesses of a range of sizes and industries on all their HR needs. Tracey is MCIPD qualified, and also holds IOSH and Job Evaluation accreditations. She leads on our Outplacement Service, using her skills in professional CV writing, interviewing and job searching to support employees post-redundancy or post-termination.

Tracey has worked in HR in a variety of sectors including banking, healthcare, charity and government. For the past 6 years has worked in consultancy, advising businesses of a range of sizes and industries on all their HR needs. Tracey is MCIPD qualified, and also holds IOSH and Job Evaluation accreditations. She leads on our Outplacement Service, using her skills in professional CV writing, interviewing and job searching to support employees post-redundancy or post-termination.

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