Employment Tribunals

Report: 5
Date: 14 October 2010
By: Director of Human Resources on behalf of The Commissioner

Summary

This report contains management information and performance analysis on Employment Tribunal claims brought in the financial year 2009/10. The data and trends are compared to the same period in the financial year 2008/09.

A. Recommendations

That Members note the report.

B. Supporting information

1. This is the six monthly report providing statistical data and analysis of Employment Tribunals (ETs) claims. This report concentrates on ET claims lodged from 1 April 2009 to 31 March 2010. The data and trends are compared to the period 1 April 2008 to 31 March 2009.

2. The HR Employment Tribunal Unit (HR ET Unit) is part of Human Resources and 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 as well as other units within Human Resources. 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 claims lodged in the financial year 2009/10 was 114. The total for the financial year 2008/09 was 120. (Appendix 1, Chart 1).

4. This equates to 0.19% of the total workforce lodging ET claims in 2009/10.

5. An analysis of new claims received during the financial year 2009/10 compared to the financial year 2008/09 indicates a reduction in the overall numbers of claims including allegations of sex and race discrimination. There was an increase in disability and sexual orientation discrimination claims. Age discrimination and religious belief discrimination claims remained at similar levels. (Appendix 1, Table 1).

6. Further work will be carried out to determine the nature of disability discrimination claims, with the identified themes and trends informing the disability related work being progressed in the Workforce and Working Culture action plan (of the MPS Diversity and Equality Strategy 2009-13).

7. In the financial year 2009/10, the number of unfair dismissal claims was 27, compared to 13 in 2008/09. Although there was an increase, analysis shows that 81% of the unfair dismissal claims received in 2008/09 and 2009/10, which have already concluded, were either withdrawn by the Claimant or struck out by the Tribunal.

8. In March 2009 the total number of ongoing ET claims was 99 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 2010 87 Claimants had lodged 101 claims.

Ranks and bands of personnel lodging ETs

9. In the financial year 2009/10 police officers lodged 51 (45%) of the 114 claims. This compares to 66 (55%) of 120 claims lodged in the financial year 2008/09. Police officers accounted for 60% of corporate strength figures as at March 2010. (Appendix 1, Table 2 & 3).

10. In the financial year 2009/10 police staff lodged 40 (35%) of the 114 claims lodged. This compares to 37 (31%) of the 120 claims lodged in the financial year 2008/09. Police staff accounted for 26% of corporate strength figures as at March 2010.

11. In the financial year 2009/10 Police Community Support Officers (PCSOs) lodged 12 (11%) of the 114 claims lodged. This compares to 14 (12%) of the 120 claims lodged in the financial year 2008/09. PCSOs accounted for 8% of corporate strength figures as at March 2010 .

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

13. 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. In the financial year 2009/10 there was an increase in the number of claims brought by Band Es compared to 2008/09. There was also an increase in the numbers of unfair dismissal claims from ex-Band Es and ex-PCSOs. There was a decrease in the numbers of other categories of new claims from serving PCSOs (three in 2009/10 compared to eight in 2008/09).

Diversity information

14. Diversity information is provided at Appendix 1, Tables 4 & 5.

Gender - Police officers

15. Female police officers represented 23% of the total police officer workforce as at March 2010. In the financial year 2009/10 they accounted for 19 claims (37% of the total police officer claims lodged). This compares to 23 claims (35%) in the financial year 2008/09.

Gender - Police staff

16. Female police staff represented 58% of the total police staff workforce as at March 2010. In the financial year 2009/10 they accounted for 22 claims (55% of the total police staff claims lodged). This compares to 14 claims (38%) in the financial year 2008/09.

Gender - PCSOs

17. Female PCSOs represented 35% of the total PCSO workforce as at March 2010. In the financial year 2009/10 they accounted for three claims (25% of the total PCSO claims lodged). This compares to one claim (7%) in 2008/09.

Ethnicity - Police officers

18. Black and Minority Ethnic (BME) police officers represented 9.4% of the total police officer workforce as at March 2010. In the financial year 2009/10 they accounted for 17 claims (33% of the total police officer claims lodged). This compares to 28 claims (42%) in the financial year 2008/09.

Ethnicity - Police staff

19. BME police staff represented 23% of the total police staff workforce as at March 2010. In the financial year 2009/10 they accounted for 18 claims (45% of the total police staff claims lodged). This compares to 15 claims (41%) in the financial year 2008/09.

Ethnicity - PCSOs

20. BME PCSOs represented 29% of the total PCSO workforce as at March 2010. In the financial year 2009/10 they accounted for nine claims (75% of the total PCSO claims lodged). This compares to 12 claims (86%) in the financial year 2008/09.

Location

21. Two locations were identified as having higher levels of claims. Further analysis was conducted and learning points and good practice from ET cases at these locations were identified and provided to the Leadership Academy. The Leadership Academy ran a series of developmental workshops for all first line managers at one location. The workshop covered leadership skills and also misconduct and unsatisfactory performance with an emphasis placed on compliance with procedures and time frames within standard operating procedures. The other subject matter introduced was that of ‘Difficult Conversations’, the emphasis behind this being that early intervention can alleviate the necessity for formal procedures. Similar training is proposed for the second location.

22. The Deputy Commissioner 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 2010 Race discrimination claims accounted for 12% of ongoing claims, Sex discrimination 3%, Disability discrimination 15%, Age discrimination 2%, unfair/constructive dismissal 7%, sexual orientation 0%, religious belief 1% and other 4%. Claims brought under multiple jurisdictions (grounds for complaint) accounted for the largest percentage of claims (56%). 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

24. In the financial year 2008/09 (Appendix 1, Table 7) 37% of claims were withdrawn by claimants and 10% of claims were struck out by the Tribunal for want of jurisdiction. 25% of claims were settled. 24% of claims were won at tribunal and 4% (i.e. four claims) were lost. One claim lost at tribunal was successfully appealed by the MPS at the Employment Appeal Tribunal.

25. An examination of ET outcomes for the financial year 2009/10 (Appendix 1, Table 8) indicates that 36% of claims concluded were withdrawn, 12% struck out by the Tribunal and 33% of claims were settled. 12% of claims were won at tribunal and 7% (i.e. nine claims relating to six Claimants) were lost. The MPS subsequently won appeals to the Employment Appeals Tribunal (EAT) in relation to four of the claims lost at tribunal. A decision is still awaited from the EAT in one claim.

Settlements

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

Significant cases

27. As at March 2010 there were 47 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. Weekly 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 20 August 2010 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 claim 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. Judicial mediation offers an alternative approach to resolving disputes and involves a trained tribunal judge assisting the parties to reach a resolution. There may be a cost implication for future use of judicial mediation as the possibility of charging employers has been suggested in a recent evaluation of the service by the Ministry of Justice.

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. 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, and 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 delivered appropriately. The HR Organisational Development Team coordinates this work, identifying and driving forward improvements, ensuring consistency across HR and with other business groups. Recent discussions have taken place with the new Head of Organisational Learning to ensure that existing ET learning processes are linked to a co-ordinated organisational model. The HR ETU will be represented at a newly formed MPS wide Organisational Learning Forum.

32. Key learning points in respect of the Fairness at Work process were provided for a development training workshop for FAW advisors. The HR ETU conducted a session on good practice and learning points from ET cases for newly promoted superintendents during a welcome event conducted by the ‘E’ District, Police Superintendents’ Association.

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

• Discussions with the HR Policy Unit in respect of the Fairness at Work Policy and SOP concerning delays in the process, provision of regular updates to the originator, prevention of victimisation and the maintenance of confidentiality. These issues will be considered as part of the current policy review. These points were also discussed with HR Practice Support Team to highlight learning and good practice to the dedicated FAW team and FAW advisors. Some learning points will be highlighted in a newsletter to all FAW advisors and appeal advisors.
• Feedback from an ET was discussed with the relevant managers to identify lessons to be learnt particularly in relation to confidentiality around the FAW process and the potential for victimisation.
• Input to the HR PST police staff discipline team of learning and good practice in relation to police staff disciplinary issues. This addressed delays in investigations and holding discipline boards and the use of the convictions board procedure. HR PST will consider any necessary revisions to the Police Staff Discipline Policy and SOPs and the team will ensure that appropriate guidance and assistance is provided to members of staff conducting police staff discipline investigations.
• The HR ET Unit is currently working with the Directorate of Legal Services to produce a newsletter on learning points from recent ET cases involving the police staff gross misconduct procedure.
• The Directorate of Information (DOI) and HR Occupational Health (OH) have considered lessons from a recent claim in respect of processing requests for Assistive Technology (AT). This has resulted in changes to the AT request form, improvements to instructions to F&R Managers, steps taken to ensure the most efficient procedure for the allocation of demonstration appointments and the introduction of regular meetings between DOI and OH to improve communication. Further training has also been provided to OH Nurses and Occupational Health Advisors.
• Discussions with the HR Policy Unit regarding the accrual of annual leave during sickness absence. The Attendance Management SOP and Maternity Leave SOP have recently been amended following a legal decision in the European Court of Justice.
• A number of learning points have arisen in respect of the Flexible Working Policy and SOP i.e. adherence to time scales, need for regular communication, holding meetings to discuss flexible working requests and policy compliance. These points have been discussed with the HR Policy Unit and it was agreed that these issues will be further emphasised in the presentations provided to Work/Life Balance Representatives and line managers on work/life balance issues.
• The HR Recruitment Directorate is undertaking a review of eligibility criteria for employment in MPS in Recruitment and Selection policy.
• A learning meeting was held with Operational Information Services to discuss the security vetting process. It is proposed to conduct training sessions with vetting staff to convey various points of learning and good practice. A policy review is also in progress.
• Feedback to an OCU on the completion of risk assessments, referrals to OH, flexible working and compliance with various standard operating procedures. An internal developmental training workshop for managers is in preparation. The OCU is also conducting a review of the shift pattern and supervision model.
• Feedback has been provided to a BOCU senior manager which has resulted in the revision of the allocations process for driving courses to ensure transparency and consistency.

34. 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.

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 HR ET Unit is working with the HR 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. See Appendix 2 (Exempt).

Legal Implications

4. 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) and the external lawyers who also handle MPS ET claims together with the HR 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.

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 to take 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 changes include (not exhaustive) provisions to harmonise the definition of direct discrimination to cover “associative” and “perceptive” cases; removing the requirement for a comparator in victimisation cases; harassment cases to cover “associative” and “perceptive” cases and to make employers explicitly liable, in some cases, for harassment by third parties in the workplace; and to make specific provisions for claims of combined discrimination based on a combination of no more than two protected characteristics. The Act also introduces new public sector duties upon public authorities, and strengthens Tribunals powers to give them power to make recommendations that benefit the wider workforce, not just the claimant. The full impact of the Act upon the MPS will not be known until the provisions of the Act come into effect.

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.

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

Environmental Implications

5. There are no environmental issues raised by the report. However, it should be noted that the MPS Corporate Social Responsibility (CSR) Strategy is currently awaiting review by the MPA. This Strategy takes into account a broader scope of issues than the current MPS Environmental Strategy, extending also to social/ethical and economic issues. Consequently, the “Environmental Implications” section will, in due course, be replaced by a section that addresses these broader issues. This will include issues addressed by the Employment Tribunals Report, for example, in relation to fairness at work, equality and diversity, discrimination, organisational reputation, etc.

D. Background papers

None

E. Contact details

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

For more information contact:

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

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