Dip sampling of employment tribunal cases

Report: 6
Date: 13 March 2008
By: the Chief Executive

Summary

This report sets out the current procedure for dip sampling Metropolitan Police Service (MPS) Employment Tribunal 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

1. members note the process and progress that has been made in respect of the MPA’s dip sampling of closed Employment Tribunal cases; and

2. consider if they would wish to extend this process to include fairness at work cases.

B. Supporting information

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 been reached in principle about how this might operate for closed Employment Tribunal cases. However, before any further work is carried out, Members may wish to consider some of the issues that have arisen and the progress made to date.

Issues to be considered

5. The first issue is the 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. It is suggested that what the Authority is looking for is:

• 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 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 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.

10. 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 discipline 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

10. 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.

11. 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. 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
• The importance of personal clarity and understanding around HR policies, particularly appraisal, absence, and timekeeping
• 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 – not doing anything or ignoring a situation is not an option

The second theme is for the individual to understand and accept 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.

12. 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 lodging an Employment Tribunal is a very simple process and can be done ‘on line’. It is only 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, that the majority of claims are withdrawn or settled.

13. As will be apparent from the APA guidance, the suggestion is that Employment Tribunals and FaWs should be dip sampled as part of an Authority’s scrutiny role. This is a more sensitive area as Employment Tribunals are potentially matters of public record and FaWs are intended to be confidential processes, although a proportion will result in Employment Tribunals or will be taken out at the same time.

14. The proposal is that subject to further discussion with the MPS HR Directorate, FaWs should be dip sampled looking at the issues outlined in paragraph 6.

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. Background papers

None

F. Contact details

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

For more information contact:

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

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