Exit strategies – how to avoid tribunals and walk away with your head held high

Craig Dearden-Phillips talks about why it’s best to avoid employment tribunals with stroppy staff and says charities can learn a lot from the private sector about resolving disputes with employees who turn to the letter of the law to fight their corner

Why are there proportionately more employment tribunals in our sector than any other? This was the question asked by the Managing People conference, hosted by the Directory of Social Change last week.

The answer, in short, was that we have a great number of ‘stroppy' staff in a rights-aware workforce who, if wronged, are quick to turn to legal guidelines to fight their corner. On top of this, we are not good, as a sector, at settling the matter with people before things go nuclear and you're staring at your former employee across a courtroom.
 
So, what can we do about this? It is probably unfashionable to turn to the private sector for examples to follow at present, but we can learn a great deal from how it operates. Three big differences stand out about the best private firms.
 
First, they are better at the technicalities of employing people. Taking on staff these days carries liabilities that many charities just don't understand. Falling through the ice is incredibly easy, as I did myself a few years ago when I got a ‘consultation period' wrong and ended up in a tribunal. I was never told I had to have a consultation period!
 
Second, the more successful firms are better at heading things off at the pass. Most employment tribunal situations arise because, somewhere along the way, things have gotten out hand. Emotions have risen and communication has quickly broken down. When this happens, I have noticed that charities become paralysed, fearful of making contact in case this leads to further legal liabilities.

I was a trustee at one charity where dialogue was probably all that was required to settle matters. The charity remained silent and ended up paying out £10,000 and being on the end of some harsh words from the tribunal chair.
 
Third, private companies are, in my experience, much better at cutting a deal. Most of my friends work in private companies. In their world, there is a recognised financial cost for settling disputes that everyone understands, including employees. This is because of the hassle of a tribunal. People are willing to pay reasonably big money to avoid being put through the trouble.
 
Put quite simply, there is a price for resolving disputes, dependent on the dispute and the industry. One bloke I spoke to confided that if he wants shot of somebody, he knows he has to pay £30k to the person concerned. Forcing people out without due process isn't to be encouraged, but coming to an agreement that benefits everyone is probably something to be considered.

What lessons can we apply to our cash-strapped sector? 

1. Find an HR advice line. We should all make sure we have access to decent HR advice. This needn't be a lawyer or a member of your organisation's board. There are now lots of HR advice lines that cost very little. The advice is always very cautious, but it means you don't get caught on the simple stuff.
 
2. Keep dialogue open when in dispute. The instinct to freeze once someone mentions the words employment tribunal needs to be overcome. Dialogue before the lawyers get involved is the most likely route to resolution. Once you're in a legal dispute, you've lost, even if you go on to win because of the distraction it will cause you.
 
3. Cut deals where you can. For many people, a deal that allows them to leave with their dignity intact, a month or two's salary, a decent reference and a handshake is preferable to the stress and uncertainty they will face in a tribunal.

Most employees do not want to take a dispute public, and realise the damage this can do to their CV. A deal that leaves them satisfied - even when you think you might win in a tribunal - is better than beating them in a public setting. By offering a resolution, you are not admitting liability. You are simply setting out a better way forward for all parties. Contact a lawyer to set you straight on the best way to do this.

Craig Dearden-Phillips is chief executive of Speaking Up, a charity that supports people with learning difficulties, disabilities and mental health problems to help them speak up for themselves. He writes in a personal capacity

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