Dip sampling of Employment Tribunal and Fairness at work (FAW) Cases

Report: 8
Date: 12 March 2009
By: Chief Executive

Summary

This report sets out the current procedure for dip sampling Metropolitan Police Service (MPS) Employment Tribunal and Fairness at Work (FAW) cases by the Metropolitan Police Authority (MPA). It follows proposals outlined in the Association of Police Authorities (APA) guidance “Tackling discrimination: police authority oversight and scrutiny of grievance procedures and employment tribunals.” The report also provides a brief summary of the benchmarking data obtained from a number of other police authorities for Employment Tribunals, grievances and discipline cases for the financial year 2007-08.

A. Recommendation

That

1. Members note the process and progress that has been made in respect of the MPA’s dip sampling of closed Employment Tribunal and Fairness at Work (FAW) cases; and
2. note the benchmarking data (paragraph 24 et seq) and agree the approach for obtaining better benchmarking data other police authorities for the 2008-09 financial year.

B. Supporting information

Background

1. The MPA has a responsibility to secure the maintenance of an efficient and effective police service. As part of its fulfilment of that duty, the MPA has a responsibility for monitoring the way in which the MPS deals with Employment Tribunals and Fairness at Work (FaW) cases.

2. The Association of Police Authorities (APA) guidance entitled “Tackling Discrimination: Police Authority Oversight and Scrutiny of Grievance Procedures and Employment Tribunals” mainly dealt with establishing a protocol for the oversight role. However, in carrying out their oversight role, the APA suggested the following for police authorities:

Authorities might wish to consider including in their protocol arrangements for dip sampling of completed cases to assist in identifying and tackling any discrimination. Such protocols may need to cover:

• The number or proportion of completed cases that the police authority will want to inspect — this process should also involve dip-sampling a selection of files subject to ‘early resolution’ such as mediation;
• Procedures for selecting these files — it is suggested that cases to be viewed should be chosen by the police authority (rather than selected by the force). This may involve a random selection and/or a selection of files according to the nature of the grievance/ET, by unit/BCU etc;
• Access for the police authority to completed cases and any further information which it requires; and
• Procedures for considering issues with the force that arise as a result of the review of the completed cases.
• In conducting dip sampling it is important that authorities do not seek to review the conclusion reached in individual cases. Rather, the purpose is to ensure that grievances and Employment Tribunals are routinely dealt with rigorously and fairly and in line with established force policies and procedures.

3. Following extensive discussions with colleagues in the MPS agreement was reached in principle about how this might operate for closed Employment Tribunal and FAW cases.

Issues to be considered

4. There are naturally concerns expressed by the MPS about issues of confidentiality. Whilst the Authority has a statutory responsibility in respect of closed police discipline cases, there is not a similar responsibility in respect of closed Employment Tribunal or FAW cases. The Authority therefore needs to be quite clear about what it is looking for as part of this process, namely:

• What was the nature of the allegations?
• Were any supervisory issues identified?
• How were the allegations handled?
• Were the allegations dealt with in a timely manner leading up to the conclusion of the grievance or leading up to the lodging of the ET application?
• Were the allegations dealt with in a timely manner after the lodging of the ET application?
• What was the attitude/approach of the MPS during the process?
• Is there evidence that arbitration, mediation or settlement was considered?
• Who ultimately made the decision which concluded/resolved the grievance or settled or fought the ET?

5. The MPA is not looking to second guess the decisions made by the HR Directorate or Directorate of Legal Services at the time.

The internal Employment Tribunal process

6. As Members may know, on receipt of new employment tribunal claims, the head of the Employment Tribunal Unit and the relevant case manager make an assessment of the claim to consider whether there is any capacity for early resolution or intervention to resolve the case. If it is not possible at this stage, all the cases are subsequently regularly reviewed.

7. Learning from Employment Tribunal cases is a key aspect to avoiding mistakes in the future and the introduction of the Performance and Learning Manager in 2005 was an imaginative response to this issue. She works closely with the Employment Tribunal case managers to identify and draw out local and organisational learning. Good practice advice and learning is disseminated through the intranet site and there have been specific contributions to recruit training, leadership training and the reviews and revisions of MPS policies. Data is also provided to Business Groups or Operational Command Units (OCUs) if trends or issues relating to their locations are identified and debriefings are undertaken in certain cases. The Performance and Learning Manager has also met with Claimants and their representatives to afford them an opportunity to share their experience for the purpose of greater organisational learning.

8. Employment Tribunal work is by its very nature, very lengthy and ‘resource intensive.’ There is invariably a significant amount of paperwork both from the claimant and from those representing the MPS as responses go through a number of iterations before being finalised and files tend to be four to six inches thick. As the Authority does not have the resources available to be able to review all closed cases, between 8-10 cases have been identified by the HR Policy Officer for inspection each month. (Generally the numbers of Employment Tribunals are smaller than police officer complaint case numbers, but the dip sampling process is similar, i.e. it is carried out by the appropriate MPA officer.)

Issues arising from dip sampling

9. The first point to be reiterated in this report is that on the basis of the Employment Tribunal files that have been dip sampled, the MPA can be assured that the MPS management of Employment Tribunal cases is exemplary. It is clear that care and attention is given to these cases, and that they are managed in a fair but robust manner.

10. From the Employment Tribunal cases that have been dip sampled there are two ‘themes’ emerging. The first of these, not surprisingly, is the relationship between the line manager and a member of staff which accounted for the majority of Tribunal cases that were sampled. There are any number of reasons for the problems which arise but for line managers these can be summarised as:

• The importance of good oral communication rather than email
• The importance of understanding HR policies, particularly performance development reviews (PDRs), sickness and special leave, and timekeeping
• The importance of being consistent and fair in dealings with staff.
• Keeping written records of any concerns raised by staff and the actions taken

The second theme is for the individual to understand that Employment Tribunals are not about someone being found ‘guilty’ for their behaviour or the action they have taken. This refers back to the third bullet point that staff need to understand why certain actions may or may not be taken.

11. It is evident from the work of the Employment Tribunal Unit that these messages – and others – are continually being reinforced, but the MPS is a very large organisation and there is no ‘quick fix’. It is also the case that when the Commissioner lodges his detailed grounds of resistance challenging a claimant’s version of events or it becomes clear that the claim will be contested, many of the claims are withdrawn or settled.

The internal Fairness at Work (FAW) process

12. All MPS personnel may raise concerns about a variety of issues in respect of which they feel they have been treated unfairly by a manager or another member of staff. If, however, the concern arises from use of an MPS policy or procedure, which has its own appeal process, the appeal process relevant to that policy must be used. The FAW policy is not intended to apportion blame nor can it result in anyone being punished, however, where the facts and circumstances of a case require investigation through an alternative procedure, FAW will be suspended and the appropriate alternative procedure will be used.

13. First line managers have an obligation to take early action to resolve concerns of staff informally. There must be evidence that this has taken place before the FAW policy can be formally initiated. Line managers seek to achieve informal resolution within five working days of a matter of concern being raised. In certain cases managers may feel that the concerns raised could be addressed through the use of mediation, which will be available as a prelude to stage one of the FAW Policy. Local HR staff will be responsible for ensuring that any selected option for informal resolution has been exhausted before commencement of the formal procedure. It is advisable that a brief written record is made to confirm that this has taken place.

14. Where informal resolution cannot be achieved, the formal FAW Procedure will be initiated and a FAW Advisor (FAWA) duly appointed. The FAWA will look into the circumstances of the concern(s) raised and will report accordingly. Their report will include key recommendations for consideration by the appropriate manager.

15. If the aggrieved is unhappy with the outcome at stage one they may appeal against the findings, which will result in the appointment of a FAW Appeal Advisor (FAWAA). This person will be a more senior manager. The appeal stage is the final stage of the policy.

16. Each case will be monitored by local HR staff and by staff within central HR (Practice Support Team), to ensure compliance with the policy. A senior manager within the team will provide overall guidance and support, in relation to the FAW practice framework, to, local HR staff. They will also oversee the implementation of outcomes. Additionally, they will have the authority to recommend closure of cases, if and when they become aware that the issues raised fall outside of the scope and parameters of the policy. In the event that a case is deemed unsuitable for the Fairness at Work policy, the aggrieved will be given a full explanation prior to the matter being closed down.

Issues arising from dip sampling

17. The Authority does not have the resources available to be able to review all closed cases, between 8-10 cases have been identified by the HR Policy Officer for inspection each month. The first point to make is that FAW issues raised by staff are treated with a very high level of consideration and care. If a member of staff has sought to raise a FAW, there is clearly a perception that there is something going wrong within the Operational Command Unit (OCU) or Borough Operational Command Unit (BOCU). There are genuine attempts to take these issues seriously, to try to discover what is going wrong and what the individual is seeking by way of resolution. It is this latter point that is frequently elusive.

18. From the FAW cases that have been dip sampled there are two ‘themes’ emerging which can be defined as ‘context’ or ‘content’. In both cases it is invariably the relationship between the line manager and a member of staff which accounted for the majority of FAW cases that were sampled. In terms of ‘context’ the main issues were:

• Interpersonal skills - poor relations or communication between a manager and a member of staff
• Decision making - lack of control over work or little participation in decisions
• Role - lack of clarity around role / fit within OCU or BOCU
• Work-life balance - conflicting demands and perceived lack of support at work
• Career / development - perceived lack of either a ‘career’ or development (e.g. training)

19. In terms of ‘content’ the main issues raised were:

• Task design - ill defined and subject to change in nature or priority
• Workload - inflexible or unpredictable workloads

20. In the majority of the FAWs which were dip sampled there was some ‘learning’ from the issues raised, although the majority (around 75%) were not substantiated. In the majority of the remaining cases that were dip sampled, the aggrieved does not agree with the findings and the matter remains unresolved.

21. The FAWAs in particular work consciously to try to find a resolution, invariably talking to all parties and trying to repair damaged working relationships. This means looking as much at the underlying reasons why the grievance was brought in addition to what the grievance was about. At all stages it is equally evident that those trying to resolve the grievance are listening to the individual and trying to work with them to find a solution that tackles the issue or issues that have been raised.

22. Insofar as the FAWs where no resolution has been reached, this appears most frequently where the aggrieved has not been clear about the resolution he or she was seeking or what is being sought is someone being found ‘guilty’ for their behaviour or the action they have taken. (This is an identical issue with Employment Tribunals).

Benchmarking Employment Tribunal, FAW and complaints data with other police authorities

23. In the last eighteen months, strenuous attempts have been made to benchmark Employment Tribunal, FAW and complaints data, firstly against other parts of the Greater London Authority (GLA) Group and, when that proved only partially successful, against other police forces. Despite three separate reminders through the Association of Police Authorities (APA) since March 2008 asking for comparative data for the 2007-08 financial year, only 14 other police authorities responded.

24. From this data, it is evident that in terms of Employment Tribunals and FAWs, that the MPS is not uniformly better or worse than other police force. This applies equally to the issue of disproportionality in respect of Black and Minority Ethnic (BME) staff and women (Not all police forces record other equality groups).

25. For example, in terms of Employment Tribunals, (police officers and police staff) the number per 1000 MPS staff is less than Surrey, Durham and Lincolnshire, more than Humberside, Hertfordshire, Thames Valley, Suffolk, Essex, Dorset, Bedfordshire, Cheshire, Norfolk and Lancashire, and the same as Nottinghamshire. Lancashire had none. In terms of – for example - BMEs, the proportion per 100 staff is less than in Surrey, Hertfordshire, Bedfordshire and Lincolnshire, more than Humberside, Thames Valley, Suffolk, Essex, Dorset, Durham, Cheshire, Norfolk and Lancashire (who all had none) and the same as Nottinghamshire. In terms of gender, the proportion per 100 staff is less than Surrey, Durham and Lincolnshire, more than Humberside, Hertfordshire, Suffolk, Essex, Dorset, Bedfordshire, Cheshire, Norfolk and Lancashire and the same as Nottinghamshire.

26. In terms of FAWs (police officers and police staff) the number per 1000 MPS staff is less than Surrey, Humberside, Hertfordshire, Essex, Durham, Cheshire, Nottinghamshire and Lancashire, but more than Thames Valley, Suffolk, Dorset, Bedfordshire, Lincolnshire and Norfolk. In terms of – for example - BMEs, the proportion per 100 staff is less than in Surrey, Hertfordshire, Essex, Durham and Lancashire and more than Thames Valley, Bedfordshire, Nottinghamshire, Humberside, Suffolk, Dorset, Cheshire, Lincolnshire and Norfolk. Humberside, Suffolk, Dorset, Cheshire, Lincolnshire and Norfolk had none. In terms of gender, the proportion per 100 staff is less than Surrey, Humberside, Hertfordshire, Essex, Durham, Cheshire, Nottinghamshire and Lincolnshire and more than Thames Valley, Suffolk, Dorset, Bedfordshire, Norfolk and Lincolnshire. Lincolnshire had none.

27. Unfortunately, from the complaints data that has been given two things are evident. Firstly, that combining police officers and police staff failed to take into account the likely disproportionality between the number of ‘complaints’ against police officers and police staff. Secondly, different forces have interpreted the request in different ways, with the majority appearing to only include data where disciplinary action has been taken. For example, in Thames Valley the number of ‘complaints’ is shown as five, whereas the data on the Independent Police Complaints Commission (IPCC) website for 2007-08 shows 967 complaints.

28. Rather than go back to all 14 forces to establish how they defined the request they received, it is proposed to re-issue this request for Employment Tribunal, FAW and complaints data for 2008-09. In terms of complaints it is intended to ask that police officers and police staff data is separated and, in respect of police officers, that the data provided to the IPCC is used.

C. Race and equality impact

1. Work undertaken by the MPA and MPS in furtherance of dip sampling protocol derives from recommendations of the Morris Inquiry and the APA guidance to ensure that Employment Tribunals and grievances are handled in a fair, proportionate and timely manner.

2. The principal purpose of the dip sampling process is to provide the MPA with some assurance that these cases are handled properly and without bias.

D. Financial implications

1. There are no direct financial implications arising from this report.

E. Background papers

None

F. Contact details

Report author(s): Alan Johnson, HR Policy Officer, MPA

For information contact:

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

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