Employment tribunals

Report: 8
Date: 13 September 2011
By: DAC Strategy, Performance and Professionalism on behalf of The Commissioner

Summary

This report contains management information and performance analysis on Employment Tribunal claims brought in the financial year 2010/11. The data and trends are compared to the same period in the financial year 2009/10.

A. Recommendations

That members note the report.

B. Supporting information

1. This is the annual report providing statistical data and analysis of Employment Tribunals (ETs) claims. This report concentrates on ET claims lodged from 1 April 2010 to 31 March 2011. The data and trends are compared to the period 1 April 2009 to 31 March 2010.

2. The Employment Tribunal Unit (ET Unit) transferred to the Deputy Commissioner’s Portfolio (DCP) on 1 July 2011 as part of the plans to develop a Professionalism and Performance function within DCP. The ET Unit manages the corporate response to employment tribunal claims brought against the Commissioner or other named Met officers and staff. This work involves acting as ‘client’ to the Directorate of Legal Services (DLS) and to external firms of solicitors who act for the Commissioner in these claims. The ‘client’ function involves giving instructions on the strategy to be adopted on each claim. This work brings the Unit into close liaison with many parts of the MPS. The Unit works alongside the Practice Support Team (PST) who oversee the Fairness at Work policy and process. (The PST has also transferred to the DCP.) There are also close links with those responsible for developing HR policy and promoting good practice in people management activities. The learning from ET cases is a key part of this. The ET cases continue to be considered as part of the MPA/MPS risk management procedure. This ensures that through a variety of means, senior managers are well briefed on significant cases and that appropriate and timely decisions are made.

3. Individuals have a legal right to make an application to the Employment Tribunal regarding matters arising from employment by the MPS. The MPS has well established policies and procedures governing employment; recruitment; dismissals and has transparent processes for raising grievances.

4. The MPS’s in-house legal department (DLS) and the external lawyers who also handle MPS ET claims together with the ET Unit make an early assessment of each case by gathering key facts and establishing the merits of a case and give early consideration in relation to whether parties can agree any matters prior to a case progressing to a full hearing. In this way the MPS can minimise the cost of managing cases not only in terms of the legal defence, but also in terms of preparation of the case if the most likely outcome is to resolve the case by way of mediation, for example, which may lead to withdrawal or settlement of a claim.

5. This report indicates that the MPS has a good track record in relation to employment practices given that it is one of the largest public sector bodies in London with over 50,000 police officers and staff.

New and on-going employment tribunal claims

6. The number of new ET claims lodged in the financial year 2010/11 was 127. The total for the financial year 2009/10 was 114. (Appendix 1, Chart 1).

7. This equates to 0.23% of the total workforce lodging ET claims in 2010/11.

8. An analysis of new claims received during the financial year 2010/11 compared to the financial year 2009/10 indicates an increase in disability, race and sex discrimination claims. There was a reduction in the number of claims including allegations of age, religious/belief and sexual orientation. (Appendix 1, Table 1).

9. The ET Unit carried out work to determine the nature of disability discrimination claims lodged during the period 2008-10 and identify themes and trends. This analysis has contributed to the work being progressed by the People Services Organisational Development (OD) Team who is currently examining the reasons leading to the lower satisfaction levels of disabled staff in the MPS staff surveys and determining suitable preventative measures through the Your Views Count Disability Action Plan. The ET Unit will continue to work with the OD Team in respect of the disability claims lodged in 2010/11.

10. In the financial year 2010/11, the number of unfair dismissal claims was 29, compared to 27 in 2009/10. Although the level of unfair dismissal claims has remained high over the last two years analysis has shown that of the cases lodged in 2010/11, which have already concluded, 79% were either withdrawn by the Claimant or struck out by the Tribunal and 19% were successfully defended by the MPS.

11. In March 2011 the total number of ongoing ET claims was 116 and in March 2010 this totalled 101 (Appendix 1, Chart 2). These include several multiple claims (i.e. separate claims brought by the same Claimant). As at March 2011, 101 Claimants had lodged 116 claims.

Ranks and bands of personnel lodging ETs

12. In the financial year 2010/11 police officers lodged 58 (46%) of the 127 claims. This compares to 51 (45%) of the 114 claims lodged in the financial year 2009/10. Police officers accounted for 58% of corporate strength figures as at March 2011. (Appendix 1, Table 2 and 3).

13. In the financial year 2010/11 police staff lodged 38 (30%) of the 127 claims lodged. This compares to 40 (35%) of the 114 claims lodged in the financial year 2009/10. Police staff accounted for 25% of corporate strength figures as at March 2011.

14. In the financial year 2010/11 Police Community Support Officers (PCSOs) lodged 25 (20%) of the 127 claims lodged. This compares to 12 (11%) of the 114 claims lodged in the financial year 2009/10. PCSOs accounted for 7% of corporate strength figures as at March 2011.

15. Traffic wardens and non-employees/job applicants lodged the remaining claims.

16. Police constables and Band Es lodged the highest percentage of claims. As might be expected, the largest groups of personnel by rank or band are those represented in the greatest numbers in the MPS i.e. police constables and administrative staff. There was also an increase in the numbers of claims from ex-members of police staff including PCSOs. The majority of these claims were lodged for unfair or constructive dismissal.

Diversity information

17. Diversity information is provided at Appendix 1, Tables 4 and 5.

Gender - Police officers

18. Female police officers represented 23% of the total police officer workforce as at March 2011. In the financial year 2010/11 they accounted for 21 claims (36% of the total police officer claims lodged). This compares to 19 claims (37%) in the financial year 2009/10.

Gender - Police staff

19. Female police staff represented 57% of the total police staff workforce as at March 2011. In the financial year 2010/11 they accounted for 24 claims (63% of the total police staff claims lodged). This compares to 22 claims (55%) in the financial year 2009/10.

Gender - PCSOs

20. Female PCSOs represented 35% of the total PCSO workforce as at March 2011. In the financial year 2010/11 they accounted for five claims (20% of the total PCSO claims lodged). This compares to three claims (25%) in 2009/10.

Ethnicity - Police officers

21. Black and Minority Ethnic (BME) police officers represented 10% of the total police officer workforce as at March 2011. In the financial year 2010/11 they accounted for 19 claims (33% of the total police officer claims lodged). This compares to 17 claims (33%) in the financial year 2009/10.

Ethnicity - Police staff

22. BME police staff represented 23% of the total police staff workforce as at March 2011. In the financial year 2010/11 they accounted for 20 claims (53% of the total police staff claims lodged). This compares to 18 claims (45%) in the financial year 2009/10.

Ethnicity - PCSOs

23. BME PCSOs represented 30% of the total PCSO workforce as at March 2011. In the financial year 2010/11 they accounted for 14 claims (56% of the total PCSO claims lodged). This compares to 9 claims (75%) in the financial year 2009/10.

Location

24. One location was identified as having a high level of claims. The Leadership Academy ran a series of developmental workshops for all first line managers at that location with input provided from the ET Unit on learning points and good practice from ET claims.

Categories of cases

25. As of March 2011 Race discrimination claims accounted for 11% of ongoing claims, Sex discrimination 4%, Disability discrimination 18%, Age discrimination 2%, unfair/constructive dismissal 9%, sexual orientation 0%, religious belief 1% and other 2%. Claims brought under multiple jurisdictions (grounds for complaint) accounted for the largest percentage of claims (53%). There is a continuing trend for claims to be brought under more than one jurisdiction e.g. sex and race discrimination and religious belief. In any hearing, the tribunal has to decide upon the merits of the claim made under each jurisdiction. Appendix 1, Table 6 shows the huge range of these multi-jurisdictional claims.

Results

26. In the financial year 2009/10 (Appendix 1, Table 7) 36% of claims were withdrawn by claimants and 12% of claims were struck out by the Tribunal for want of jurisdiction. 33% of claims were settled. 12% of claims were won at tribunal and 7% i.e. nine claims relating to six Claimants were lost. Five of the claims lost at Tribunal have since been successfully appealed by the MPS at the Employment Appeal Tribunal.

27. An examination of ET outcomes for the financial year 2010/11 (Appendix 1, Table 8) indicates that 54% of claims concluded were withdrawn, 13% struck out by the Tribunal and 15% of claims were settled. 13% of claims were won at tribunal and 5% (i.e. five claims relating to four Claimants) were lost.

Settlements

28. Information on settlements and the financial implications arising from these is contained in Appendix 2 (Exempt).

Significant cases

29. As at March 2011 there were 46 exceptional/significant cases in progress. These cases have been categorised as A, B or C under the terms defined in the MPS/MPA protocol. A monthly risk management meeting chaired by Commander DPS provides support to Management Board in relation to the identification and management of risks to the organisational reputation of the MPS, particularly with regard to professional standards. The head of the ET Unit attends this forum alongside senior representatives from all business and operational units as well as a representative from the MPA. The group discusses strategy around high level risks to the MPS and determines what should be placed on the DPS corporate risk register and what matters should be escalated to Management Board. Fortnightly reports of all categorised cases are provided to the MPA Chief Executive with further briefings and information provided when required. Details of high risk and significant cases ongoing as at 15 August 2011 are attached at Appendix 3 (Exempt).

Early resolution and learning

30. All new and ongoing employment tribunal claims are the subject of regular assessment to consider whether there is any capacity for early resolution outside of the tribunal process. On receipt of the claim the head of the ET Unit and the relevant case manager consider whether there is any capacity for early resolution at that point and/or whether some form of intervention strategy might be appropriate to resolve the case. Each case is considered and a resolution checklist completed to formally record the issues identified as potential resolution proposals or those issues which prevent resolution at that time e.g. ongoing disciplinary proceedings. In many cases at the time the ET claim is received there is often already some form of intervention in progress e.g. the Fairness at Work procedure.

31. Mediation has been successfully used in some cases, which has avoided matters progressing to a tribunal hearing. This includes participation in ‘judicial mediation’ which was introduced by the Employment Tribunal Service in January 2009. Judicial mediation offers an alternative approach to resolving disputes and involves a trained tribunal judge assisting the parties to reach a resolution.

32. The ET case managers identify local and organisational learning from ET claims. The ET unit has been working with the Head of Organisational Learning (Organisational Development) to ensure that there is a mechanism to capture organisational learning from ET claims and that this forms part of the analysis of generic factors that underpin lessons across the MPS in order to stimulate long term change activity and sustain improvement. Following the move of the ET Unit to the DCP organisational learning from ET claims will also contribute to the work of the DPS Prevention and Reduction Team.

33. Some recent examples of local and organisational learning identified from ET cases included:

• Input to the PST police staff discipline team of learning and good practice in relation to police staff disciplinary issues. PST considered any necessary revisions to the Police Staff Discipline Policy and SOPs and the team ensured that appropriate guidance and assistance was provided to managers involved in police staff disciplinary procedures.
• The ET Unit worked with the Directorate of Legal Services and PST to produce a newsletter on learning points from recent ET cases involving the police staff misconduct procedure. The newsletter was circulated to the HR community in February 2011 and published on the intranet.
• A meeting was held with an SHRA and managers from an OCU to provide advice and guidance around flexible working issues which led to a local review of procedures.
• A meeting was held with the Head of Workforce Deployment to discuss issues arising from the redeployment process. These points were subsequently taken into account during the drafting of a management protocol document for police staff postings and redeployment.
• Following consultation with the Directorate of Professional Standards guidance was circulated in respect of investigations into allegations of discrimination and the treatment of persons making allegations.
• Guidance was provided to an SHRA concerning the requirement to make reasonable adjustments for a disabled person in relation to the Attendance Management Policy and Unsatisfactory Performance and Attendance in the Police Staff Discipline SOP.
• ET learning points were provided to a Directorate to be cascaded to OCUs via a Diversity Forum.
• Advice was provided to the Recruitment Directorate in respect of making appropriate adjustments to selection tests during a recruitment process involving an individual with dyslexia and dealing with appeals in a timely fashion.

34. Debriefings of the Commissioner’s witnesses and senior management have been undertaken by the ET Unit in certain cases to identify and draw out local and organisational learning. The Performance and Learning Manager has also met with a number of Claimants and their representatives to afford them an opportunity to share their experience for the purpose of greater organisational learning.

C. Other organisational and community implications

Equality and Diversity Impact

1. The MPS remains committed to the achievement of a hospitable working environment in which all groups of personnel can work with dignity and have the opportunity to fulfil their potential. It is recognised that early intervention at an appropriate level is a key factor in managing conflict resolution. A wide range of activities take place to ensure that the MPS learns lessons from ET cases. The ET Unit is working with the Organisational Development Team to ensure organisational learning is appropriately delivered.

Consideration of Met Forward

2. This report fully reflects and supports MPS delivery of the following key outcomes of Met Forward: increasing confidence in policing; giving better value for money and valuing our people. These are achieved by activities to minimise the cost and risk of ETs to the MPS by resolving issues at an early stage where possible thereby reducing individual and organisational damage and by sharing learning across the MPS to improve awareness and prevent recurring problems.

Financial Implications

3. The costs associated with managing and dealing with the issues set out within this report are all covered by cross business budgets as agreed within the latest version of the Business Plan.

4. The specific costs associated with settlement, awards and remedies relating to ETs are set out in Appendix 2 (Exempt) for the financial years 2009-10 and 2010-11.

Legal Implications

5. There has been recent legislative development in relation to employment matters. The Equality Act 2010 received royal assent on 8 April 2010, with the majority of the Act’s provisions took effect in October 2010. The Act brings together and re-states existing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, and seeks to adopt a single approach where appropriate. The main purposes of the Equality Act 2010 are to harmonise the discrimination legislation which existed prior to October 2010 and to strengthen discrimination legislation as a means of supporting progress on equality.

6. To achieve this, the changes included extended protection for people against direct discrimination and harassment by association and perception; removing the requirement for a comparator in victimisation cases; making employers explicitly liable, in some cases, for harassment by third parties in the workplace; making specific provisions for claims of combined discrimination based on a combination of no more than two protected characteristics.

7. The Act also introduces new public sector duties upon public authorities, and strengthens the Tribunals’ powers to enable them to make recommendations that benefit the wider workforce, not just the claimant. It is too soon to assess the full impact of the Act upon the MPS.

8. This Committee has delegated authority to consider matters relating to human resource issues excluding individual cases of conduct or performance related matters.

Environmental Implications

9. There are no environmental issues raised by the report.

Risk (including Health and Safety) Implications

10. The management of risks identified in relation to ET claims are discussed in the report. The ongoing learning activities aim to prevent future organisational risks.

D. Background papers

• None

E. Contact details

Report authors:

• Esme Crowther, Head of Employment Tribunal Unit
• Margaret Kelly, Performance and Learning Manager, Employment Tribunal Unit

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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