Employment Tribunals

Report: 5
Date: 30 June 2009
By: Director of Human Resources on behalf of The Commissioner

Summary

This report to the MPA Human Resources and Remuneration Sub-Committee contains management information and performance analysis on employment tribunal claims brought against the Commissioner in the period from 1 April 2008 to 31 March 2009. The data and trends are compared to the period 1 April 2007 to 31 March 2008.

A. Recommendations

That Members note the report.

B. Supporting information

Performance during 2008/09

1. This is the six monthly report to the Human Resources and Remuneration Sub-Committee providing statistical data and analysis regarding MPS performance in terms of Employment Tribunals (ETs) brought against the Commissioner. (Previous reports were presented to the MPA Professional Standards and Complaints Committee and the Strategic and Operational Policing Committee.) This report concentrates on ETs lodged from 1 April 2008 to 31 March 2009. The data and trends are compared to the period 1 April 2007 to 31 March 2008.

2. The HR Employment Tribunal Unit (HR ET Unit) is part of HR Services Directorate and manages the corporate response to employment tribunal claims brought against the Commissioner. This work involves acting as ‘client’ to the Directorate of Legal Services 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 as well as other units within the Human Resources Directorate. The Unit works alongside the HR Practice Support Team (PST) who oversee the Fairness at Work policy and process. 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.

New and on-going employment tribunal claims

3. The number of new ET cases lodged against the Commissioner in the financial year 1 April 2008 to 31 March 2009 was 120. The total for the financial year 1 April 2007 to 31 March 2008 was 117. (Appendix 1, Chart 1).

4. In March 2008 the total number of ongoing ET claims was 80 and in March 2009 this had risen to 99 (Appendix 1, Chart 2). These figures include several multiple claims (i.e. separate claims brought by the same Claimant). As at March 2009, 80 Claimants had lodged 99 claims.

5. An analysis of new claims received during the financial year 1 April 2008 to 31 March 2009 compared to 1 April 2007 to 31 March 2008 indicates a decrease in age discrimination claims but shows a slight increase in the numbers of sex and disability discrimination claims. There was an increase in the numbers of claims including allegations of race discrimination. The annual reports published by ACAS and the Tribunal Service show that in 2007/08 there was a 42% increase in the number of claims received by tribunals from 2006/07. Many of these include claims under more than one jurisdiction. On 6 April 2009 the Statutory Dispute Resolution Procedures were abolished by the Employment Act 2008 in order to simplify disciplinary and grievance procedures and to minimise the numbers of ET claims. There is a new emphasis on internal and external mediation to resolve disputes.

6. In the financial year 1 April 2008 to 31 March 2009 there were 11 claims brought under the Employment Equality (Age) Regulations 2006. This compares to 22 claims including allegations of age discrimination in the financial year 1 April 2007 to 31 March 2008. 12 claimants lodged 13 of these claims, which all related to one multiple case (i.e. where a number of claimants have lodged claims relating to the same issue on one particular borough). The claimants alleged discrimination on the grounds of age, in respect of the decision to disband a specific role on the borough. (These claims were all subsequently withdrawn).

In the financial year 1 April 2008 to 31 March 2009 there were 35 claims which included allegations of disability discrimination. This was a small increase on t7. he 33 claims lodged in the financial year 1 April 2007 to 31 March 2008. Many of the claims also include allegations of less favourable treatment on the grounds of race and/or sex discrimination and claims for unfair/constructive dismissal. In a proportion of cases MPS Claimants fail to meet the definition of disability to bring a claim under the DDA and that part of their claim is withdrawn or struck out.

8. The Performance and Learning Manager has been identifying the types of issues raised in these claims. The majority of claims allege that there was a failure to consider/make reasonable adjustments. Additionally, the allegations include the decision to transfer claimants, career development issues, failure to obtain or follow medical advice, failure to pay special priority payments and failure to communicate and seek views from the claimant regarding reasonable adjustments. Discussions around learning points from ET claims have taken place with the HR Workforce Planning Unit regarding the postings of officers with disabilities. The Unit confirmed that adjustments had already been made to procedures to ensure that delays in finding suitable postings were minimised. Discussions have also taken place with HR Police Promotion Unit who have put in place a number of initiatives to ensure that disabled officers are provided with appropriate reasonable adjustments during promotion processes. This is discussed further at paragraph 33. One meeting took place with a Claimant and a senior manager from the BOCU to discuss the learning points from the claim. A subsequent meeting took place with the Business Manager to share the learning and advise on good practice and discuss how the learning should be promulgated to other line managers on the borough. Another meeting took place with a Claimant to discuss issues regarding the FAW and transfer processes. This was followed with discussions with the HR PST and Workforce Planning Unit.

9. In the financial year 1 April 2007 to 31 March 2008 seven claims were lodged under the Employment Equality (Religion or Belief) Regulations 2003. The number of claims increased slightly in the financial year 2008/09 to 11. Nearly all the claims also involved allegations of race discrimination. There were three claims under the Employment Equality (Sexual Orientation) Regulations 2003 lodged in the financial year 1 April 2007 to 31 March 2008 and one claim lodged in the period 1 April 2008 to 31 March 2009.

Ranks and bands of personnel lodging ETs

10. In the financial year 1 April 2008 to 31 March 2009 police officers lodged 66 (55%) of the 120 claims. This compares to 52 (44%) of the 117 claims lodged in the financial year 1 April 2007 to 31 March 2008. Police officers accounted for 63% of corporate strength figures as at March 2009. (Appendix 1, Table 1 & 2).

11. In the financial year 1 April 2008 to 31 March 2009 police staff lodged 51 (43%) of the total number of claims lodged. This compares to 59 (51%) of the total number of claims in the financial year 1 April 2007 to 31 March 2008. Police staff accounted for 37% of corporate strength figures as at March 2009. The multiple case referred to at paragraph 6 (now withdrawn) increased the total of police staff claims in 2007/08.

12. Non-employees/job applicants lodged the remaining claims.

13. Police constables/sergeants and Band Es/Ds 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/sergeants and administrative staff. In the financial year 1 April 2007 to 31 March 2008 there were a significant number of claims (thirteen) lodged by Band Ds but all these relate to the multiple age discrimination claim, now withdrawn. In the financial year 1 April 2008 to 31 March 2009 there were high numbers of claims from senior police officers. This included seven claims from retired male police officers who brought claims in respect of the differential in the commutation payments between male and female police officers under the Police Pension Scheme 1987. These claims were stayed by the Tribunal pending the outcome of a Judicial Review Hearing on this issue which took place in December 2008. Four of these claims have now been withdrawn. There was a reduction in the numbers of unfair/dismissal claims from ex-members of police staff of various bands in the financial year 2008/09 compared to the financial year 2007/08. There was an increase in the numbers of claims from PCSOs i.e. in the financial year 1 April 2007 to 31 March 2008 ten claims were lodged and in the financial year 1 April 2008 to 31 March 2009 fourteen claims were lodged. A high number of the claims in both years were lodged by ex-PCSOs alleging unfair dismissal. There appears to be a disproportionate number of claims including allegations of race discrimination from PCSOs during the last two financial years. The HR ET Unit is currently conducting a review of PCSO claims to detail the outcomes in these cases and to identify the key issues raised in the claims.

Diversity information

14. Diversity information is provided at Appendix 1, Table 3.

Gender

15. In the financial year 1 April 2008 to 31 March 2009, 39 claims (32% were lodged by female police officers/staff compared to 40 claims (34%) in the financial year 1 April 2007 to 31 March 2008. Corporate strength for female police officers/staff as at March 2009 is 33%. In percentage terms claims from females have continued to decrease over the last five years.

Ethnicity

16. In the financial year 1 April 2008 to 31 March 2009 60 claims (50%) were lodged by white police officers/staff, 27 claims (22%) by black police officers/staff, 20 claims (17%) by Asian police officers/staff, eight (7%) by other groups and 5 (4%) were unknown.

17. The ethnicity profile of claimants in the financial year 1 April 2007 to 31 March 2008 is 68 claims (58%) by white police officers/staff, 14 (12%) by black police officers/staff, 15 (13%) by Asian police officers/staff, four (3%) by other groups and 16 (14%) unknown.

18. It is noted that the proportion of BME claimants is higher than would be expected based on their proportion within the workplace. To investigate this further the Performance, Development and Monitoring Unit in the Diversity and Citizen Focus Directorate was asked to conduct an analysis of the quantitative data collected by the HR ET Unit in order to investigate any issues of disproportionality. The analysis conducted for the report was based on new claims lodged in the financial year 2006/07. This report has now been drafted though its recommendations (to undertake further analysis) has been suspended pending the report of the MPA Race and Faith Inquiry.

Timeliness

19. In the financial year 1 April 2008 to 31 March 2009 26 cases took more than 400 days to reach a conclusion and in the financial year 1 April 2007 to 31 March 2008 19 cases took more than 400 days to reach a conclusion (Appendix 1, Chart 3 & 4). The number of live claims, which were over 400 days old, was 16 in March 2009 and 10 in March 2008. (Appendix 1, Chart 5 & 6).

20. There are a number of factors which prevent the early resolution of cases such as the complexity of claims, particularly multiple claims which remain in the ET system much longer than other types of claim, claims being stayed for long periods by the Tribunal to enable the completion of internal Fairness at Work and disciplinary processes and delays by the Tribunal in listing cases.

Location

21. Apart from the multiple case – now withdrawn - referred to in paragraph 6 above, no other location had an especially high level of claims.

22. The Commander, Directorate of Professional Standards (DPS), heads a Strategic Co-ordinating and Tasking Group that regularly receives strategic intelligence reports based on the range of DPS activity to identify locations or issues warranting further examination or intervention. The ET Unit regularly provides employment tribunal data on location to DPS as part of this process.

Categories of cases

23. As of March 2009 Race discrimination claims accounted for 21% of ongoing claims, Sex discrimination 16%, Disability discrimination 6%, unfair/constructive dismissal 3%, sexual orientation 1%, religious belief 1% and other 6%. Claims brought under several jurisdictions (grounds for complaint) accounted for the largest percentage of claims (46%). There is an increasing trend for claims to cover more than one jurisdiction e.g. sex and race discrimination and religious belief. (Appendix 1, Table 4). Table 4 shows the huge range of these multi-jurisdictional claims.

Results

24. An examination of ET outcomes for the financial year 1 April 2008 to 31 March 2009 (Appendix 1, Table 6) indicates that 37% of cases concluded were withdrawn, 10% struck out by the Tribunal and 25% of claims were settled. 24% of claims were won at tribunal and 4% (i.e. four cases were lost). It should be noted that some of these figures comprise multiple claims by a single claimant.

25. In the financial year 1 April 2007 to 31 March 2008 (Appendix 1, Table 5) 43% of claims were withdrawn by claimants and 11% of claims were struck out by the Tribunal for want of jurisdiction. 37% of claims were settled. 6% of claims were won at tribunal and 3% (i.e. 3 cases) were lost.

Settlements

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

Significant cases

27. In March 2009 there were 62 exceptional/significant cases in progress. These cases have been categorised as A, B or C under the terms defined in the MPS/MPA protocol. Weekly reports of all the categorised cases are provided to the MPA Chief Executive with further briefings and information provided when required. Regular meetings take place with the Chairman of the MPA SOP to review all current significant cases. Details of high risk and significant cases ongoing as at 5 June 2009 are attached at Appendix 3 (Exempt)

Early resolution and learning

28. 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 HR 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 is received there is often already some form of intervention in progress e.g. the Fairness at Work procedure.

29. 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 (following a pilot in 2006/07). Judicial mediation offers an alternative approach to resolving disputes and involves a trained tribunal judge assisting the parties to reach a resolution.

30. Learning from ET cases is a key aspect in the work of the HR ET Unit. The Performance and Learning Manager works closely with the ET case managers to identify and draw out local and organisational learning from ET claims. A range of means are utilised to share organisational learning. This has included input to training events and seminars for key personnel. Work is currently being undertaken with the Leadership Academy to provide input to the revision of the training course for newly promoted inspectors. Case specific learning may in some cases be fed back through line management as a developmental need for individuals or teams. Policy matters are pursued with the relevant policy portfolio holder and the ET Unit is regularly consulted for input during reviews and revision of MPS policies and Standard Operating Procedures. Data is also provided to Business Groups or OCUs if trends or issues relating to their locations are identified.

31. With the introduction of People Services case specific/local learning will continue to be fed back through line management. This could involve HR Operational Support, the Strategic HR Advisors, HR Business Partners together with senior management/heads of unit/BOCU Commanders. The HR ETU would be part of the feedback loop to the Strategic Centre, Expert Services and HR Operational Support to ensure that the organisational learning and good practice points from employment tribunal claims are appropriately delivered. The HR Organisational Development Team coordinates this work, identifying and driving forward improvements, ensuring consistency across HR and with other business groups.

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

• Feedback provided to a Business Manager following an issue in relation to local interpretation of the policy in relation to restricted/recuperative duties in the Attendance Management Policy
• Counsel’s advice on a revision to the wording in relation to the restricted/recuperative duties is being considered in the review of the Attendance Management Policy
• A Directorate has now formed a Diversity Forum which has regular meetings with staff members.
• Issues raised in a number of unfair dismissal claims have led to work with the HR PST to identify areas of local and organisational learning. These points will be considered in the next review of the Police Staff Discipline Policy e.g. the evidence gathering checklist, the dismissal interview checklist and chairperson’s action sheet.
• Feedback was provided to a senior manager and the HR PST in relation to issues arising in an unfair dismissal claim regarding alleged failures to follow MPS police staff discipline procedures. The senior manager will promulgate learning and good practice to inspectors across the borough.
• Feedback in relation to an unfair dismissal case was delivered to senior management in one unit and arrangements have been made to deliver a workshop on police staff discipline to appropriate managers within this unit.
• Feedback provided to policy portfolio holder of the Flexible Working Policy regarding informed and consistent decision making.
• Input to the review of dress code policy.
• The HR Police Promotion Unit has implemented changes to processes for the trainee detective constable scheme and is giving further consideration to the investigation of any potential disproportionality in success rates within the scheme.
• A number of improvements to the way the HR Police Promotion Unit manage promotion applications from police officers with disabilities have been made following a successful disability claim. These improvements include recording how diversity (including disability) issues are considered at the exercise design phase, the commissioning of a manual of guidance to explain promotion processes and demonstrate their fairness to all candidates plus an invitation to the Claimant to be a point of contact for feedback on improvement and development matters.
• As a result of a disability claim that was eventually settled OH and the HR Police Promotion Unit have worked to develop a protocol covering the capture of data on requests from candidates for reasonable adjustments, a partnership approach working with the candidate to assess and scope their request, a means to collate medical/professional/specialist advice including timescales and creating a system to respond to candidates in a consistent way.

33. Debriefings of the Commissioner’s witnesses and senior management have been undertaken by the HR 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. One of these meetings involved the HR Career Management Unit and Police Promotion Unit to discuss issues of making reasonable adjustments for disabled officers seeking promotion. Another case resulted in a Claimant being invited to participate in a local Diversity Group considering flexible working.

Abbreviations

ACAS

Advisory, Conciliation and Arbitration Service

BME

Black and Minority Ethnic

BOCU

Borough Operational Command Unit

DDA

Disability Discrimination Act

DLS

Directorate of Legal Services

DPS

Directorate of Professional Standards

ET

Employment Tribunal

ETU

Employment Tribunal Unit

HR

Human Resources

PCSO

Police Community Support Officer

PST

Practice Support Team

C. Race and equality impact

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.

D. Financial implications

See Appendix 2 (Exempt).

E. Legal implications

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.

The MPS’s in-house legal department (DLS) or the external lawyers who also handle MPS ET claims together with the HR ET Unit make an early assessment of cases by gathering key facts and establishing the merits of cases and give early consideration in relation to whether parties can agree any matters prior to cases 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 be resolve the case by way of mediation, for example, which may lead to withdrawal or settlement of a claim.

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 employing over 50,000 police officers and staff.

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

F. Background papers

None

G. Contact details

Report author: Esme Crowther, Head of HR ET Unit, and Margaret Kelly, Performance and Learning Manager, HR ET Unit.

For more information contact:

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

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