Dip sampling of employment tribunal and fairness at work cases

Report: 5
Date: 19 October 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.”

A. Recommendations

That 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.

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.

4. 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

5. 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 managerial 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 / FAW?
• What was the attitude/approach of the MPS during the process?
• Is there evidence that mediation or settlement was considered?
• Who ultimately made the decision which concluded/resolved the grievance or settled or fought the ET?
• Were MPS witnesses debriefed?
• If the relevant Morris Inquiry recommendations have been applied, e.g. in relation to media interest (recommendation 20(i))

7. 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

8. As Members will 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 early stage the cases are subsequently regularly reviewed.

9. Learning from Employment Tribunal cases is a key aspect to avoiding mistakes in the future and the introduction of the Performance and Learning Manager 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.

10. Employment Tribunal work is by its very nature, very lengthy and ‘resource intensive,’ nevertheless it is pleasing to note that the various stages of the Employment Tribunal are concluded in a timely manner with the major ‘delaying’ factor being the Employment Tribunal Service finding a ‘slot’ for the hearing.

11. 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 for inspection each month.

Issues arising from dip sampling

12. The first point to make 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.

13. From the Employment Tribunal cases that have been dip sampled in the last six months the main theme emerging is the relationship between the line manager and a member of staff. 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, e.g. all too often emails or texts have been sent rather than face-to-face dialogue;
• The importance of personal clarity and understanding around HR policies, particularly appraisal, absence, and timekeeping, e.g. assumptions have been made about what has been said or written but this is not necessarily a shared understanding;
• The importance of being consistent, and being seen to be consistent and fair in dealings with staff.
• Keeping written records of any concerns raised by staff and the actions taken, e.g. all too often individual line managers have not appreciated the importance of a one-to-one conversation or understood the importance of being consistent, and being seen to be consistent, in dealings with colleagues and staff.

14. This is not to suggest line managers have got it wrong or have acted inappropriately, but it is important to recognise some fairly basic managerial responsibilities. In particular, staff need to understand why certain actions may or may not be taken.

15. 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 situations are often replicated from one Operational Command Unit (OCU) to another or at the same OCU but several years apart. However, it is important to stress that the majority of claims are withdrawn or settled, e.g. only three were lost in the last financial year.

The internal Fairness at Work (FAW) process

16. 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.

17. 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.

18. Concerns raised under the FAW policy, and not resolved on an informal basis, will result in the appointment of an independent Fairness at Work Advisor (FAWA), who will examine the circumstances of the concern with a view to resolving the issue. This work should normally be completed within 14 working days of a matter being formally raised, however, in exceptional circumstances (i.e. the complex nature of a case) the Advisor will have up-to 28 working days in which to complete their review.

19. In the event that the individual raising the FAW is unhappy about the outcome, they can initiate an appeal, which will lead to the appointment of a Fairness at Work Appeal Advisor (FAWAA). This person will review all work previously undertaken with a view to resolving the matter of concern. This work will normally be completed within 14 working days of the appeal stage being initiated but in exceptional circumstances may take up-to 28 working days from the commencement of stage 2 (Appeal). The entire FAW procedure should normally be completed in no more than 28 working days but in exceptional circumstances it may take up-to 56 working days for a case to be concluded. If there is a delay in the completion of any stage, the reasons should be fully documented and shared with the parties involved.

Issues arising from dip sampling

20. 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 OCU or Borough OCU (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.

21. From the FAW cases that have been dip sampled there are two ‘themes’ emerging. The first is the issue of timing. Although the timings can appear generous (as outlined at paragraphs 16-19) there are frequently a significant number of staff for the FAWA or FAWAA to interview. As neither the FAWA nor FAWAA are full time appointments, finding the time for interviews, writing up notes, etc can be a time consuming business. As a result, a significant number of cases extend beyond the time limits laid down in the policy, which can be frustrating for both the individual who raised the grievance and the other party or parties against whom the grievance is lodged. H

22.The second is the number of occasions when 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. The FAWAs and FAWAAs work conscientiously 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.

23. In the majority of the FAWs which were dip sampled there was some ‘learning’ from the issues raised, although the majority (around 80%) were not substantiated and in the remainder the majority were only partially substantiated. In these cases that were dip sampled, the aggrieved usually does not agree with the findings and the matter remains unresolved.

24. This policy is currently the subject of a review with the trade unions and staff associations. The trade unions have raised concerns with the MPA both about the time taken to complete investigations and the ‘enforceability’ of any subsequent recommendations. These are both areas where the policy review will need to consider what action or changes may be required.

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 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

There are no direct financial implications arising from this report.

E. Legal implications

None given.

F. Background papers

None

G. Contact details

Report author: Alan Johnson

For more information contact:

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

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