I’ll be writing about Tribunal fees and their effect in a future blog, but right now I’d like to highlight one impact of the introduction of the Tribunal fees, namely that the proportion of discrimination claims in the Tribunal Service case load has significantly increased.
This is because, whilst the fees have had a real impact on deterring the standard one-day unfair dismissal claims, they haven’t really dampened down the number of discrimination claims that are brought.
There are a number of reasons for this, and one of course is that discrimination claims tend to result in higher awards, so claimants are more prepared to “invest” the cost of the claim and hearing fees (£1200 in total).
The other reason is the what I’d like to focus on. It’s the motivation behind the discrimination claim.
Often I find in discrimination claims that they are driven by a real sense of injustice on the part of the claimant. I remember sitting in an ACAS meeting, trying to settle a particularly complex and acrimonious set of race discrimination claims, and the lead claimant quoted Martin Luther King, at length. We knew then that the settlement discussions were futile!
That claim came about through the sadly well-trodden path of an employee feeling that they have been overlooked for promotion, or a similar complaint, on the grounds of their protected characteristic (in this particular case it was their race). They submitted a grievance and swiftly followed it up with a Tribunal claim. What then happened is what usually happens: the managers become defensive and annoyed.
I describe this as both sides retreating to their respective trenches; remember here that the claimant is often still employed and attending work. Relations deteriorate and soon a further grievance is issued, followed by a victimisation claim to the Tribunal. Workplace relationships sour further and the downward spiral continues. This is terribly corrosive and places all of the protagonists under tremendous pressure, and sadly in the particular case I’m thinking of it had an impact on the health of a number of those involved. This is all aside from the legal and financial consequences.
There has been a recent decision in the Court of Appeal relating to someone asking for, and being refused, a reference in the midst of a number of sex discrimination claims issued by her. The claimant issued a grievance about that refusal. The Tribunal said that there was no basis to link the refusal to give a reference to the Tribunal claim that she had settled. The Court of Appeal reviewed this and took the decision that, regardless of the Tribunal’s view on the lack of such a clear link, if the claimant could establish that she had been treated less favourably in the way the procedures were applied then the Claimant would have a “legitimate sense of injustice” for which she should be compensated.
It’s that sense of injustice that retreating to the trenches can really help to create. How to avoid it is easier said than done but one tip for managers is to ask yourself “Why am I going to treat this employee [the claimant] this way?” There is a temptation, understandable perhaps, for managers to nit pick with employees who have raised a complaint against them, particularly those who have raised complaints about the managers personally.
Managers are human too and it’s not nice when you’ve been criticised, but they should really try to rise above it, with help from the company. A very wise and expensive (think Wayne Rooney’s daily earnings) QC advised my client’s managers to treat their prolific claimant employees as if they were their best performing employees. That is not to say that they are then bomb-proof, but it can help change the narrative. It may also be sensible for companies to consider moving employees or managers to a different department in particularly toxic situations to avoid things becoming even worse.
The other thing to think about is an early intervention, particularly by an external mediator. I have seen the positive results that a mediator can achieve, helping rescue a group of people who were locked in a seemingly endless struggle.
We’ve certainly advised on enough of these sorts of situations to be able to help you spot the signs to help you out of what is undoubtedly a very unpleasant situation.
Associate Solicitor, Menzies Law