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Avoiding grievance and disciplinary hearings
Overview
PolicyMatter software is used by customers to make policies effective by ensuring they are read and understood, and to drive down the administrative costs traditionally associated with managing policies across their life-cycle.
Although no customers have approached us with the specific purpose of using PolicyMatter as a means to sack employees, a question that is sometimes raised wholly legitimately in discussions is how it might help organisations minimize the risks of tribunals or grievance procedures.
In this paper we discuss some of the considerations of this matter and look at how PolicyMatter can benefit both employers and employees.
When prevention is better than cure
Prevention, as the saying goes, is better than cure. In several ways PolicyMatter can be used to help reduce the risk of tribunals taking place at all.
• The way policies are presented to employees is clear and effective. Presenting policy at login makes it extremely hard to ignore, as sooner or later the ‘Later’ button will time out and employees will have to read their policies.
• Getting the message across clearly and effectively is central to managing risk as our experience suggests that in many instances employees quite genuinely are unaware of the requirements set out in their employer’s policies even though they may have day to day relevance for them.
• The personalised Policy Library makes it extremely easy for staff to access the policies relevant to them, rather than having to fight their way through impenetrable Intranets with mounds of policy information that may quite simply be just not relevant.
• By selectively using the Question and Answer option you’re actually taking steps to make people aware of the policy. They can’t just click ‘OK’. The questions are set up in such a way that staff need to read the whole policy to answer the questions. If they don’t show understanding, you can re-present the policy and make them read it until they do.
When tribunals are unavoidable
However if it does come to an Employment Tribunal, PolicyMatter would assist in a number of regularly encountered situations. Being able to show you told an employee what was expected of them is central to defending most cases, for example:
• In a situation where you are facing an Employment Tribunal claim it will often be because you have taken a step in connection with the employee that the employee objects to, usually to dismiss. If as is generally the case, the dismissal is for some infraction of the internal procedures, the first question that will always be asked when deciding if the claim can be defended is; “Did the employee know what was required of him or her? “ If this cannot be answered with confidence then your position in the litigation can be fatally undermined. In short, the kind of accusations an employer without PolicyMatter might struggle with could include, “Policy? What policy?”, “I didn’t know policy had changed,” “You deluged me with a mass of policy stuff on my first day so to show good willing I signed up to it,” . With PolicyMatter the employee will find it all but impossible to deny that they knew what was expected of them.
• Another common scenario is where an employee is the subject of what they believe is discriminatory treatment by co workers. In that case, not only to be able to deal with the people responsible for the conduct, but moreover to guard against claims by the victim you will need to be able to demonstrate what behavior was prohibited. As you will know, the ‘victims’ in such a case will always be on good ground if they can show the employer took no steps to prevent the treatment and in such a case the employer will stand little chance of distancing itself from the behavior of its employee’s. This is put beyond doubt with PolicyMatter which puts the employer in a position to be able to say with certainty that it took steps to protect its employees from discrimination
• As you may have encountered with some key policies, for example around Diversity issues, it is not just enough to even have a policy if you cannot demonstrate that you have taken steps to genuinely communicate and educate. Tribunals are increasingly cynical about employers who simply produce a policy from a handbook but where it is clear that no one has tried to really communicate what the policy concerns. PolicyMatter’s ability to test understanding defeats the argument that ; “I was pressurized to sign policy but you didn’t take the trouble to help me understand it.”
• PolicyMatter’s ability to re-present a policy at a regular interval also prevents employees saying; “ Well I read it when I joined but that was years ago”.
Another common scenario that occurs is when employees will allege that the policy is being upheld only for some people. If an employee can point to someone who is being treated or has been treated differently, then their claim will be much stronger. Employment Tribunals will be slow to allow an employer to act on a policy breach if it does not do so in all cases. PolicyMatter allow the policy to be communicated to everyone on the network which will substantially improve he chances of treating everyone they same in the event of a breach and stamps out the practice of policies being communicated only in some parts or levels of the employee’s organization.
• By way of a final illustration, PolicyMatter also helps managers understand the Disciplinary Policy itself. Many Tribunal claims stem from allegations of breach of process. For example, “You didn’t investigate before you dismissed me” or “ you didn’t tell me I could be accompanied”. These can be the most frustrating type of claim because the employee can win even if the basis for the decision was in fact correct. If the mangers that uphold the rules and deal with the grievances and disciplinary hearings are always within process because they understand what to do then once again the chances of being able to robustly deal with any claim is improved
PolicyMatter helps counter all of the situations set out above. The key principle customers can demonstrate is that it has clearly taken reasonable care. It has approached the issue of policy communication in a serious and conscientious manner, and has implemented thorough systems to help them do this.
• clear, effective presentation rather than just posting policies “somewhere on the intranet” or in a handbook which could be ignored
• policy changes communicated clearly, with changes highlighted, the old version automatically removed and the new version stored in the individual’s Policy Library i.e. the current policy was never more than three clicks away from the user’s desktop
• not just demanding a (meaningless) sign up but taking reasonable steps to make sure staff understand it as well
• setting up a new joiner process for scheduling policies over time, rather than inundating new employees
• running checks to see if any questions were consistently answered incorrectly across the whole organisation i.e. highlighting potential problems with the clause or the question.
If it’s a question of going back in time, PolicyMatter will also be able to show an audit trail of each version of policy an employee signed up to, including changes.
Based on work we have done with Employment Law specialists such as Cater Leydon Millard, the key point is being able to consistently show that you have acted reasonably and taken reasonable steps. So for example, testing understanding of policy doesn’t mean testing every single sentence in every single clause! (That’s an unreasonable demand on the employer. It would never be able to get any other work done!) It means selecting a reasonable number of important policy issues. The act of being able to answer this selection means that staff will have to read the whole policy to answer the few questions.
Where we can’t help you
PolicyMatter won’t help you if your supporting processes are sloppy and inconsistent. Take for example a probable key policy, say, Harassment and Discrimination.
• If you had recorded an employee’s score as 0 out of 6, but did absolutely nothing about it. That goes against the whole idea of “taking reasonable care”. A sensible step would be to choose one of the configuration options like ‘Explain why policy is as it is’ and ‘Re-present Policy’ until the correct score is achieved. These allow you to be thorough but without increasing in any way the administrative burden.
• If your disciplinary track record is inconsistent i.e. you discipline a junior member of staff for harassment, using PolicyMatter to show he had received and agreed to the policy, but he is able to show you turned a blind eye to a senior manager committing a similar offence.
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