Employment Tribunal decisions don’t always match what professional bodies say is the law….
This is a bold statement I know! But it is 100% based on my recent experience representing the employer in a recent CIPD (the governing body for HR Professionals) Mock Tribunal Event held at the University of Bedford.
As a member of the Milton Keynes & Bedford CIPD committee I was kindly ‘volunteered’ to represent the employer in a Sex and Race Discrimination of a pregnant agency worker.
I know how to live!
Sadly though, I love a challenge like this. It gives me a chance to put myself out of my comfort zone whilst learning and developing as an HR practitioner.
The event attracts over a 100 participants to watch the tribunal which has a real panel of judges. Each side has to present their case and question the witnesses following the protocol expected in a real hearing scenario.
For those of you lucky enough not to be familiar with the Tribunal process each side has all the documentation beforehand, called a bundle, and can only rely on this information to build their case. The bundle was just over 50 pages this year and we had a couple of weeks to prepare.
To add to the fun of the evening the bundle is from a real case that has already been heard by a Tribunal but of course, the names have all been changed to protect the identity of the original case.
Acting for the Employer, known as the Respondent, I had one witness who was the HR Manager of the company being taken to court. The opposition, known as the Claimant, had two witnesses, the alleged victim of the discrimination and her friend who worked with her.
Preparation for this event takes approximately 40 hours, including meeting with your witness to brief on strategy and highlight key points that they should try and make during their testimony. No easy task as you have to guess what the other party is going to ask them!
The evening event is very formal with each witness being sworn in, not allowed to take notes to the witness stand and the full formal process is followed. After all the witnesses have been heard and cross-examined by both parties, the Respondent and the Claimant, each give a closing statement on why they believe the allegations should be either upheld or dismissed.
Top tip – Quoting relevant case law to support findings is always a good action to show what has previously decided by the EAT. Trawling through to find supporting case law is a great way to spend a Saturday night…..
After this the judges retired to consider the evidence given and agree their findings. At the event in Bedford the audience was then asked to vote on who they believe should win the case, the Respondent or the Claimant, based on the evidence they heard presented by both parties.
Last night overwhelmingly everyone agreed the Employer should win.
Great that I had convinced a room of HR professionals but what about the judges?
When the panel returned with their judgement all allegations of discrimination based on pregnancy and race were dismissed much to my delight!
The hours of work were worth it, my understanding of the interpretation of employment law was correct and I had managed to make my point so the judges understood why a dismissal was the right outcome! At this point I could almost smell the glass of red waiting for me at home……
As a further twist, the panel is then informed of the original outcome of the case to see if it matches their decision.
So now I have set the scene, here is where I found a discrepancy in the information readily available for employers online and how in reality they would be penalised by a tribunal.
Part of the case covered the lack of a pregnancy risk assessment which is something I would always conduct with an expectant mother.
However, I had to defend an employer who had not conducted a risk assessment so I had to find a reason…….
Where to start because every good HR professional knows you should do one! How about the Health & Safety Executive website……….. let’s see what they have to say on the matter. This is when things got interesting. According to their website in the Expectant Mothers FAQs, I found my answer!
As uncomfortable with this as I was I prepared my defence and quoted the website virtually word for word…….
My defence was that a specific risk assessment was not necessary because my client carried out a general risk assessment for their employees to assess all health and safety risks they are exposed to while at work on a regular basis and that as part of that process, they considered female employees of childbearing age, including new and expectant mothers, assessing the risks that may arise from any process, working condition or physical, biological or chemical agents.
How do you think this went down with the Tribunal panel? I’ll give you one guess!
A Lead Balloon………..
Although the case did not pivot on this point, fortunately, it did give me the chance to question whether this was indeed correct from the judges perspective. Guess what? No, it was not. They would always expect an employer to conduct a specific risk assessment on a pregnant employee.
So where’s the lesson here?
I took a risk and presented evidence that I did not believe was correct despite having evidence from the leading authority on Health & Safety.
The lesson? The interpretation of the law and of what is expected can be different in different contexts. The HSE won’t be taken to court and held liable for not conducting a risk assessment on a pregnant employee but guess who could be? Yep, Employers.
Personally, I am pleased I challenged this point. Google is used way too frequently to find the answers to questions that really need a professional with experience in that specific field to advise on.
This demonstrates the value of having great HR support for your business and how it can potentially save you from small, silly errors that ultimately can be very expensive.
If you would like to know more about me, this experience or my business then I am happy to meet up for a cup of coffee and chat!
The link to the HSE website is below if you want to check it out!
I now need to start working on the top 10 reasons why I am too busy next year to represent the Employer, number one will be I have won two years in a row and I’d like to go out on high!
Until next time,