Employment law DIY – Process, process all around but common sense is lost?
This week, a little relief from the ‘to do list’ formula and instead some more abstract thoughts about ‘process’ that have occurred to me as I have been writing the blog over the last couple of weeks.
We all reach for the policy manual when an employee presents a problem or makes a complaint. HR has professionalised the use of workplace procedures and policies are increasingly complex with multiple subjects, stages, and streams for different issues. We tend to operate on the basis that compliant processes will embody reasonableness and we expect Employment Tribunals to pass judgement on us if they are abandoned. In this regulated environment, we adhere to the policy on the understanding that it should maintain compliance in itself.
There are good reasons for this. You can see one explanation, for instance, in the case law that looks at the connection between substantive and procedural fairness in dismissals. Essentially the point is that following a particular procedure is a way of securing substantive fairness. That procedure builds in principles such as those of natural justice which help to secure the right outcome. Transparency in decision-making supports the pursuit of reasonableness.
All of that makes perfect sense, but slavish adherence to process can sometimes have unintended consequences and will not always produce the right result for either the employee or employer.
There are numerous examples of this on the desks of employment lawyers daily. A problem that could be resolved informally is dealt with formally simply because of the fear that failing to do so will compound the original issue. A complaint that the employee never intended to present as a formal grievance is sent down that road. Disciplinary action is postponed because a grievance is raised, even though it is simply a manifestation of the employee’s defence. The reliance on procedure and the fear of departing from it also gives some employees the opportunity to tie HR teams in knots – often seeking to have the same basic complaint re-examined multiple times.
Aspects of the legal framework have made it difficult to introduce flexibility in a process or to work around it. The old statutory disciplinary and grievance procedures conditioned our responses to employee complaints. And in discrimination cases, the ability to draw inference from non-standard responses and the risk of uplift on an award makes us hesitate to recommend a departure from the norm.
Understandably, employees who take advice are also told to follow the process laid down by their employer. In doing so they can become extraordinarily focussed on a failure to adhere to an exact standard or rule.
In some respects, the development of alternative dispute resolution and the use of protected conversations could be a reaction to this. The policies we created to solve problems are not always working and so we look for different ways to respond – but in doing so we may be undermining the objective we had in introducing the policy in the first place.
Is there a solution to this? If there is, it lies in the use of judgement and common sense. The Tribunals recognise this when they see it. They can also identify when an employee is abusing the system. So if you can genuinely see a way forward in a dispute, sometimes you should swallow a brave pill and try to solve the problem outside the technical constraints of a procedure. If you take that route, there are safeguards that you can build in – e.g.:
- Test out your reasons for departing from the norm or the standard – write them down – how do they sound?
- Get agreement if you can to take a different route (without pressure). The employees who are genuinely looking for a solution will usually give it. They don’t necessarily have to give up their rights to use the formal process – these can be put on ice while alternatives are explored.
- Don’t be afraid to have conversations or meetings outside of the formal procedure. I don’t mean that you shouldn’t make a record of what was said – just don’t let the process dictate when you do and don’t talk to the employee.
- Don’t forget to ask the employee what they want to achieve or what they see the solution as being. In other words, don’t assume that the formal route is what they really want to take.
- Make sure that you build in flexibility and the capacity to depart from the norm to the procedures themselves – recognising that they are not ‘one size fits all’. Disciplinary and grievance procedures can, for instance, have ‘bridging’ clauses that allow you to deal with complaints or issues that overlap.
- While it is always important to be clear what your obligations are as an employer, be careful with language in the policy – commit to certainty only where you know you can give it.
- If you are really uncertain about the risk profile of what you want to do or change – particularly if there is a potential discrimination angle – lift the phone to your legal advisers. That’s what we are here for.
Next week, we’ll get back to checklists and practicalities, but I hope that these thoughts resonate with many of you.
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