The case between Stephanie Villalba and Merrill Lynch continues to occupy the press given that she has just submitted an appeal to the Employment Appeal Tribunal against the decision of the Tribunal last year. Big companies and institutions are therefore wary of any further high profile employment disputes. We have compiled our top ten tips for City employers to consider when faced with a grievance or potential tribunal claim.
1. Follow equal opportunities procedures
Merrill Lynch’s HR department was heavily criticised in the Villalba Tribunal decision for not following parts of its own Equal Opportunities Policy and the Equal Opportunities Commission Statutory Code. If equal opportunities procedures are followed in the first place, it reduces the likelihood that an employee will bring a claim of discrimination and if they do, provides the Company with more armour against defending such a claim and will help to avoid inferences of discrimination being drawn.
2. Follow disciplinary procedures
When a decision is taken to dismiss an employee or take disciplinary action, a Company should follow its own disciplinary procedures or at the very minimum follow the three stage statutory disciplinary procedure which came into force in October 2004. It is helpful to standardise these procedures across the Company and different departments. This will hopefully reduce the risks of employees being treated differently and raising claims of discrimination.
3. Follow the grievance procedure
Since 1 October 2005 employees have been prevented from bringing an employment tribunal claim if they have not yet lodged a grievance (except in certain circumstances where an employee has been dismissed and there is no issue of discrimination). In our opinion, the manner in which an employer deals with any grievance is critical in preventing a matter becoming litigious. A well managed grievance can go a long way to answering an employee’s complaint and could form an important part of the Company’s defence if the matter becomes contentious.
4. Deal with employees who have made complaints in a fair way
Victimisation arises where an individual can show that they have been treated less favourably because they have made a complaint of discrimination. It is therefore very important that after a complaint of discrimination has been made that an employer take steps to deal with any complaints or grievance effectively and in the same way as others have been treated in relation to their grievance. Being treated in exactly the same way can also include raising any necessary performance issues with individuals if so required even though they, themselves have raised a grievance. It is important not to treat employees more favourably as this can lead to a certain expectation that they will receive this treatment all the way through which is not appropriate or helpful.
5. Have transparent pay structures
Recent high profile cases have relied heavily on the lack of transparency in the promotion and appointment system and the culture of secrecy and opaqueness regarding pay and the approach to bonuses.
Employers can go a long way to avoiding such claims of discrimination on the grounds of pay and sex by having an objective and transparent system for fixing remuneration. If an employee lodges a questionnaire prior to bringing proceedings, being able to answer questions posed in an equal pay discrimination questionnaire will assist employers in providing a consistent and effective response to claims.
6. Train line-managers
It is helpful to train line-managers in diversity issues so they know that they are expected to comply with HR procedures and HR departments should take time to give senior management appropriate training.
7. Have a designated point of contact during a grievance process
It is helpful if companies have a designated point of contact so employees feel that their complaint is being treated seriously and know of whom they can ask questions. This assists in their feeling part of the organisation and not isolated and also ensures that a grievance will be run smoothly and within the necessary timeframes if someone has responsibility for undertaking the grievance.
8. Have a paper trail
Establishing a paper trail which backs up the reasons for any decision making is vital in defending an employment claim successfully. There is a real risk that a tribunal will draw an inference of discrimination should an employer make arbitrary and irrational decisions if there is no supporting documentation to explain the reasons behind the decision.
9. Do investigate the complaint properly
It is important in the early stages to conduct a thorough investigation of the complaint which has been made as this will enable a company to identify the strengths and weaknesses of the case against it. However, there is caveat to this which is that if an employer decides to adopt a particular approach at this stage, it is important that this is followed consistently throughout the process to ensure credibility should the matter proceed to court.
10. Think carefully about without prejudice meetings
The case of Mezzotero v. BNP Paribas provides guidance as to how employers should approach without prejudice discussions. In this case, the without prejudice veil was pierced as the Court held that they were not genuine without prejudice conversations and were being used as a way to dismiss an employee in bad faith. Employers should try to adopt an even-handed approach and if a decision is taken to speak on a without prejudice basis, the actions should be confirmed on a letter headed without prejudice and the employee’s agreement obtained in advance of any meetings that they will be undertaken under the without prejudice label.