It seems like a strange thing to celebrate; a record number of people so unhappy about their work that they resort to the tribunal system as the only way to find a solution, but that is what the Departmant of Justice has done.
In a report published yesterday, 31 January 2017 the Department says that more than 92,000 people bought forward workplace disputes to the tribunal system in 2016 – the highest number since employment tribunal fees were introduced.
It is the bit about the figure being a record since the intoduction of fees that it seems is worth celebrating. Fees for taking a case to a Tribubal were introduced in 2013, just three years ago, as an attempt to reduce the number of ‘have a go’ claims so that employers could be saved the costs of dealing with the claim and Tribunals could focus on genuine cases, .
The Department has not compared the 2016 figure to the number of cases brought before the introduction of fees.
There is always going to be a question about the number of workplace injustices that go unchallenged because the workers affected can not afford to stand-up for their rights, but the Government claims that the introduction of tribunal fees has dramatically changed how workplace disputes are resolved.
The Government are claiming that the introduction of tribunal fees, alongside free mediation services, has dramatically changed how workplace disputes are resolved. It also claims that thousands more people will be able to access work place justice with the introduction of an extended scheme to waive fees for lowest paid workers.
That means that the monthly income threshold for full fee remission will increase from £1,085 to £1,250 – broadly the equivalent of someone earning the National Living Wage. There are additional allowances for people living as couples and those with children.
The big challenge for the Government in this area as in so many is how does it help not just those on the National Living Wage, but those people who earn just a bit more but do not have access to the financial resources to fund a claim. The people that Prime Minister Theresa May described as the ‘Just About Managing’
Justice Minister Sir Oliver Heald said:
It is right that those who can afford to should contribute to the cost of Employment Tribunals, but under the extended Help with Fees scheme, more people would not pay a fee and others will contribute less than under current arrangements.
The extended scheme would benefit the disabled, women, Black, Asian, Minority Ethnic (BAME) individuals, and the young, who all feature disproportionately among low income groups.
The Government has also decided to exempt from fees a small number of proceedings related to payments made from the National Insurance Fund, as in most cases the applicant is unable to conciliate or recover fees.
While many have chosen not to bring employment tribunal claims, the review found nothing to suggest they have been prevented from doing so, and that higher numbers turning to ACAS is a “positive outcome”.
It also found:
Alongside the Review the Government is also launching a consultation, which seeks to raise awareness of the Help with Fees scheme, and highlight how thousands more would qualify for help.
Ministers will bring forward further plans to improve legal support in a Green Paper by early 2018, while the Prison and Courts Bill, due to be published shortly, will make it simpler to access justice and enable thousands more people to bring cases online.
Help with making access to justice available to everyone, equally is important, but prevention is better than cure and the Government might do better to acknowledge that many employment disputes could be avoided if managers and employees understood how to make their relationship work properly. The UK still has too many unqualified managers and too many workers who have been tutored in the ‘them and us’ culture of industrial relations.
We have had a summer that has been full of good news, said Mr Millward, the Queen’s Diamond Jubilee, the success of TeamGB at the London Olympics and the forthcoming Paralympic Games have given us all a warm feeling. Yet it is important to also acknowledge that in the world of work the level of strike days has reached a 20 year high!
The latest figures from the Office for National Statistics (ONS) show that workers in Britain spent 1.39 million working days on strike action or in other industrial disputes during 2011, which is the highest level for 20 years. Ninety –five percent of the disputes that resulted in industrial action were connected to pay.
In the public sector 92percent of the industrial disputes related to pensions including the nation dispute in November 2011.
The number of people willing to get involved in an industrial dispute has risen twelve fold since 2010 to 1.5million people.
Forty-one percent of disputes were in the private sector with 110,000 days lost to industrial action, the highest since 2004.
The days of long term industrial action like the miners’ strike may be over. In 2011 the majority of work stoppages lasted for just one day. But we must not underestimate the disruption and loss of business that even a one day stoppage can cause said Mr Millward.
With the economy still under pressure and unemployment rising across Yorkshire, there is an increasing likelihood that at some time in the next twelve months employers are going to have to communicate bad news to their employees.
Communicate bad news correctly and you soften the blow, get it wrong and you turn a bad situation in to a catastrophe!
In his career of more than 30 years in HR Michael Millward has often had periods like those portrayed by George Clooney in the Hollywood film Up In the Air. It’s probably the only film in which the leading man plays a HR professional! His character flies around the USA telling people that their job has been made redundant and that they are out of work. It is a role with which Mr Millward is very familiar, only for him he was flying into a different European city every day.
Acas the government body tasked with helping employers and employees avoid disputes has recently issued a guide to help employers to effectively communicate bad news.
The guide focuses on redundancies but the principles can be applied to any situation.
The first point that the guide makes is that bad news should be communicated by someone who is emotionally distant from those affected by the news. This advice runs contrary to the long held view that the bad news should be communicated by the people who tell you the good stuff as well.
If a line manager is taken out of the communication it can be seen as a weakness by their staff. On the other hand having someone from head office as the bearer of bad news can make it easier for line managers to focus on the what do we do next aspects; and how are we going to cope with this questions.
It is never easy telling someone that they are no longer required to do a job that may have been a major part of their life, and it can be difficult to cope with the range of emotional reactions that you encounter explained Mr Millward.
As the person doing the telling you also have to accept that you are the person in the middle and that the decision makers will blame you if the news is badly accepted.
How you deal with the people who are leaving will have an impact of the people who remain, and how they feel about working for your organisation and their commitment to making it successful. Couple that with the problems that are raised when a disgruntled employee goes to the press with a sob story about mistreatment and you end up with customers who are unhappy as well.
Of course said Mr Millward if you get it wrong you can also end up with a tribunal claim.
Employers need to carefully select the person who is doing the telling carefully. They should aim for someone who can show empathy, without getting emotionally involved as well as being very practical.
A study conducted by Dr Ian Ashman from the Institute for Research into Organisation, Work and Employment at the University of Central Lancashire’s Business School on behalf of Acas found that.
The study also found that experiences in the private and public sectors varied. Envoys in the private sector were more likely to be involved in the decision making process around downsizing which gave them a greater sense of ownership. This helped them deal with the more difficult aspect of the role. In contrast public sector envoys were less likely to be involved, and though they may understand the reasons behind decisions, they had less sense of ownership and buy in regarding decisions and the procedures for implementing any job losses.
Michael Millward joined Elly Fiorentini on the BBC Radio York Drive Time show to discuss the recent leaked report that was prepared by Adrian Beecroft for Prime Minister David Cameron which proposes wide ranging changes to employment protection legislation.
Initial reporting of the recommendations in the report focused said Mr Millward on the misconception that the report was going to remove the right of unsatisfied employees or rather ex-employees to claim unfair dismissal.
Details of the leaked report were first published in the Daily Telegraph, and have been followed by letters from employers saying that removing the right to claim unfair dismissal would make them more likely to recruit more workers.
Mr Millward said that he doubted that this was actually the case. Employers recruit more people when they need them to meet the needs of their customers, and that he agreed with the General Secretary of the Trades Union Congress Brendan Barber who has been reported as saying that
“Scrapping protection against unfair dismissal, even for people who have given years of loyal service, will do absolutely nothing to boost the economy. Indeed if people are constantly in fear of losing their jobs it will lead consumers to spend even less.
“But while this proposal does nothing for growth, it does show the kind of economy those close to the Prime Minister want to create – one in which nasty bosses are given full license to undermine those trying to maintain decent standards.
“The clue is in the name. Employers already have plenty of powers to make fair dismissals. Giving them the right to act unfairly may go down well on the backbenches, but will horrify employees.”
Press reports had said Mr Millward created a distorted interpretation of the report’s recommendations, which created the impression that the report was suggesting the removal of the rights of employees to claim unfair dismissal which would create a situation similar to that in many parts of the United States of America where a system called ‘employment at will’ is used.
Employment at will does allow employers to dismiss poor performing employees much more quickly that they can here in the United Kingdom, but the same system also means that good employees can leave a company without providing any notice.
Removing the obligations on employers means that those one employees to provide notice would also have to be removed.
Organisations that represent some sectors of the business community are always claiming that employment law is scudded in favour of the employee. This is simply not the case. There are requirements on both sides.
The main problem with employment law is that employers don’t take the time to understand it, they take advice from people who don’t fully understand either and worse often believe the hype about the scudded nature of employment law being and neither of them have the guts to apply it properly.
It remains to be seen said Mr Millward whether unfair dismissal legislation is actually going to be abolished.
What the report actually recommends as a replacement for the current employment tribunal process is a Compensated No Fault Dismissal System for performance related dismissals.
The proposed system would allow employees the opportunity to argue against the dismissal and if they failed to convince their employer that they deserved a second chance they would receive a compensation payment that would be calculated along the same lines as a redundancy payment.
The proposal said Mr Millward is really one that reinforces the existing disciplinary procedures that good employers should follow.
It also has some elements of the system used in France said Mr Millward who explained that at the moment the UK system is one in which the employee appeals against the employers’ decision to dismiss them.
In France the dismissal system has the mitigating circumstances discussed prior to the decision being made, just as Mr Beecroft is suggesting in his report.
One of the reasons why fighting a claim of unfair dismissal frightens employers regardless of whether they are in the right or not is the high cost of legal representation and the length of time involved in contesting a claim.
Changing the system in the way Mr Beecroft suggests would potentially said Mr Millward remove the need for these legal processes.
But said Mr Millward this is just a report and a leaked on at that we do not know whether it will influence any changes that the Government may be considering.
One thing that we do know said Mr Millward who regularly meets business managers as a result of his volunteer roles as Chairman of the Chartered Institute of Personnel and Development North Yorkshire branch and as an Ambassador for the National Training Awards is that many, many business people do not understand the legislation related to the employment of people in a business.
They do not take the time to understand what needs to happen or to get trained in how to do it properly. Too many of the organisations that represent them focus on complaining about the law rather than providing the support and training that would enable their members to be better employers.
In previous weeks Mr Millward and Miss Fiorentini have discussed the way in which employment tribunals and the nature of the claims they deal with have changed, and how businesses that are poorly managed are at risk from a plethora of claims from disgruntled employees and ex-employees, some of which have potentially uncapped compensation payments.
On the day when newspapers have been reporting the £1million settlement of a discrimination case by Microsoft Michael Millward joined Steve Bailey on the BBC Radio York Drive Time Show to discuss the changing nature of the cases that are dealt with by employment tribunals.
The Microsoft case follows publication by the Ministry of Justice and the HM Courts & Tribunals Service of the new ‘Employment Tribunals and Employment Appeal Tribunals Statistics 2010-11’ which show a change in the type of cases that tribunals are handling and the types of awards that they are making.
The main finding of the report is that the number of employment tribunal claims overall went down last year by 8 per cent from the previous year, which is great news for industry. However, there were significant increases in claims relating to the European Working Time Directive (up by 20 per cent), age discrimination (up by 32 per cent), and regulations for part-time workers (almost trebled).
The report also showed that of the 244,000 claims that were concluded, the largest number (39 per cent) related to unfair dismissal, breach of contract and redundancy, while 16 per cent of claims were for unauthorised deductions and 11 per cent were for equal pay.
Other research amongst 1,000 employers shows 50% of managers are frightened of sacking an under-performing employee because of concerns over what that employee might do in terms of legal action, and the potential financial consequences.
Mr Millward said that although it is good news that the overall number of claims has gone down, businesses should remain concerned about the rise in complaints relating to different types of discrimination.
He advised that businesses should train their managers to engage fully with employees and comply with the latest employment legislation.
Closer examination of the awards made by tribunals is staggering. While the average awards made for race, sexual orientation, sex, or disability discrimination run at £11,551, the average award for discriminating based on age was £30,200. This is almost three times the average of all other claims.
Clearly the risk of an employee making a claim for age discrimination is something that employers really need to get a grip of says Michael. Employers should review their current policies and levels of staff training and competence to ensure they are not left vulnerable to such claims.”
Almost a third of claims are withdrawn before they get to tribunal but it is wrong to assume that this is because claimants recognise the folly of their legal action. Often the reason is because the employerhas settled the case out of court, just to make it go away.
Unfortunately regardless of whether the claim reaches tribunal or is settled or withdrawn prior to reaching the hearing employers still face the inconvenience and extra workload of dealing with the claim, not to mention the cost of the settlement.
Mr Millward concluded by saying that it makes sense for managers to invest the time and energy in preventing the discrimination in the first place. Every organisation should encourage their managers to get closer to their employees, so that potential grievances can be identified before they escalate and employees feel the need to make formal complaints or instigate legal action.