Employment Tribunals

Report: 16
Date: 5 February 2009
By: Director of Human Resources on behalf of The Commissioner

Summary

This report contains management information and performance analysis on employment tribunal claims brought against the Commissioner in the six-month period from 1 April 2008 to 30 September 2008. The data and trends are compared to the period 1 April 2007 to 30 September 2007.

A. Recommendation

That members note the report.

B. Supporting information

1. This is the six monthly report to the Strategic and Operational Policing 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.) This report concentrates on ETs lodged from 1 April 2008 to 30 September 2008. The data and trends are compared to the period 1 April 2007 to 30 September 2007.

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, through this role, 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 Managers 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 for the six-month period 1 April 2008 to 30 September 2008 was 67. The total for the period 1 April 2007 to 30 September 2007 was 72. (Appendix 1, Chart 1).

4. In September 2007 the total number of ongoing ET claims was 103 and in September 2008 this had fallen slightly to 99 (Appendix 1, Chart 2). These figures include several multiple claims (i.e. separate claims brought by the same Claimant). As at September 2008, 84 Claimants had lodged 99 claims.

. An analysis of new claims received during the period 1 April 2008 to 30 September 2008 compared to 1 April 2007 to 30 September 2007 indicates a decrease in age discrimination claims but shows some slight increase in the numbers of sex and race discrimination claims. The annual reports published by ACAS and the Tribunal Service show that in 2007/08 there was a 44% increase in the number of claims received by tribunals from 2006/07. New laws to simplify disciplinary and grievance procedures are due to be introduced next April aimed at reducing the numbers of ET claims. There will be a greater emphasis on resolving disputes through mediation.

6. There were no claims brought under the Employment Equality (Age) Regulations in the period 1 April 2008 to 30 September 2008. There were 14 claims age discrimination claims brought in the period 1 April 2007 to September 2007. Twelve 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).

7. In the period 1 April 2008 to 30 September 2008 there were 20 claims which include allegations of disability discrimination. This was a small increase on the 16 claims lodged in the period 1 April 2007 to 30 September 2007. 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 Progression and Selection who have put in place a number of initiatives to ensure that disabled officers are provided with appropriate reasonable adjustments during promotion processes. 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 Practice Support Team (PST) and Workforce Planning Unit.

9. In the period 1 April 2007 to 30 September 2007 five claims were lodged under the Employment Equality (Religion or Belief) Regulations 2003. This was the same number as lodged in the period 1 April 2007 to 30 September 2007. Nearly all the claims also involved allegations of race discrimination. There were two claims under the Employment Equality (Sexual Orientation) Regulations 2003 lodged in the period 1 April 2007 to September 2007 and no claims lodged in the period 1 April 2008 to September 2008.

Ranks and bands of personnel lodging ETs

10. In the period 1 April 2008 to 30 September 2008 police officers lodged 38 (57%) of the 67 claims. This compares to 30 (42%) of the 72 claims lodged in the period 1 April 2007 to 30 September 2007. Police officers accounted for 63% of corporate strength figures as at September 2008. (Appendix 1, Table 1 & 2).

11. In the period 1 April 2008 to 30 September 2008 police staff lodged 27 (40%) of the total number of claims lodged. This compares to 38 (53%) of the total number of claims in the period 1 April 2007 to 30 September 2007. Police staff accounted for 37% of corporate strength figures as at September 2008. The multiple case referred to at paragraph 6 (now withdrawn) significantly 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 period 1 April 2007 to 30 September 2007 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 period 1 April 2008 to 30 September 2008 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 have been stayed by the Tribunal pending the outcome of a Judicial Review Hearing on this issue which took place in December 2008. The numbers of unfair/dismissal claims from ex-members of police staff of various bands is at a similar level in both periods. There was an increase in the numbers of claims from PCSOs i.e. in the period 1 April 2007 to 30 September 2007 four claims were lodged and in the period 1 April 2008 to 30 September 2008 9 claims were lodged.

Diversity information

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

Gender

15. In the period 1 April 2008 to 30 September 2008, 19 claims (28%) were lodged by female police officers/staff compared to 24 claims (33%) in the period 1 April 2007 to 30 September 2007. Corporate strength for female police officers/staff as at March 2008 is 33%. In percentage terms claims from females have continued to decrease over the last five years.

Ethnicity

16. In the period 1 April 2008 to 30 September 2008 33 claims (49%) were lodged by white police officers/staff, 15 claims (22%) by black police officers/staff, 12 claims (18%) by Asian police officers/staff, four (6%) by other groups and 3 (5%) were unknown.

17. The ethnicity profile of claimants in the period 1 April 2007 to 30 September 2007 is 43 claims (60%) by white police officers/staff, 7 (10%) by black police officers/staff, 9 (12%) by Asian police officers/staff, three (4%) by other groups and 10 (14%) unknown.

18. In both number and percentage terms there has been a decrease in the number of claims from white officers and staff in the period 1 April 2008 to 30 September 2008 compared to the period of 1 April 2007 to 30 September 2007. In the 2007/08 period the total of all claims brought by black and minority ethnic police officers/staff was 19 (26%) and this increased to 31 (46%) in the 2008/09 period. BME staff accounted for 15% of corporate strength figures as at March 2008.

19. 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. The report has now been concluded and HR Board is considering the various recommendations.

Timeliness

20. In the period 1 April 2008 to 30 September 2008 12 cases took more than 400 days to reach a conclusion and in the period 1 April 2007 to September 2007 10 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 11 in September 2008 and 10 in September 2007. (Appendix 1, Chart 5 & 6).

21. 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

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

23. 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

24. As of September 2008 Race discrimination claims accounted for 21% of ongoing claims, Sex discrimination 18%, Disability discrimination 14%, unfair/constructive dismissal 6%, sexual orientation 1% and other 2%. Claims brought under several jurisdictions (grounds for complaint) accounted for the largest percentage of claims (38%). There is a continuing 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 range of these multi-jurisdictional claims.

Results

25. An examination of ET outcomes for the period 1 April 2008 to 30 September 2008 (Appendix 1, Table 6) indicates that 35% of cases concluded were withdrawn, 10% struck out by the Tribunal and 25% of claims were settled. 22% of claims were won at tribunal and 8% (four claims were lost. It should be noted that some of these figures comprise multiple claims by a single claimant.

26. In the period 1 April 2007 to 30 September 2007 (Appendix 1, Table 5) 25% of claims were withdrawn by claimants and 17% of claims were struck out by the Tribunal for want of jurisdiction. 50% of claims were settled. 8% of claims were won at tribunal and 0% (no cases) were lost.

Settlements

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

Significant cases

28. In September 2008 there were 53 exceptional/significant cases in progress. These cases are 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’s Chief Executive with further briefings and information provided when required. Regular meetings take place with the Chairman of this Committee to review all current significant cases.

Early resolution and learning

29. 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 that 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.

30. Mediation has been successfully used in some cases, which has avoided matters progressing to a tribunal hearing.

31. 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, in addition to the website. 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.

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

• 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 is awaited on a revision to the wording in relation to the restricted/recuperative duties in the Attendance Management Policy
• A Diversity and Citizen Focus Adviser is exploring diversity training for a specific unit
• Issues raised in a number of unfair dismissal claims have led to work with the HR Practice Support Team 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 in relation to an unfair dismissal case was delivered to senior management in one unit and the HR Practice Support Team are making arrangements 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

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 Progression and Selection Units 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.

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. Background papers

None

F. Contact details

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

For information contact:

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

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