Employment tribunals

Report: 8
Date: 10 July 2008
By: Director of Human Resources on behalf of The Commissioner

Summary

This regular report to the MPA Professional Standards & Complaints Committee contains management information and performance analysis on employment tribunal claims brought against the Commissioner in the financial year 1 April 2007 to 31 March 2008. The data and trends are compared to the financial year 1 April 2006 to 31 March 2007.

A. Recommendations

That members note the report.

B. Supporting information

1. This is the six monthly report to the Professional Standards & Complaints Committee providing statistical data and analysis regarding MPS performance in terms of Employment Tribunals (ETs) brought against the Commissioner. This report concentrates on ETs lodged from 1 April 2007 to 31 March 2008. The data and trends is compared to the period 1 April 2006 to 31 March 2007.

2. The HR Employment Tribunal Unit (HR ET Unit) is part of HR Services Directorate working 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 financial year 2007/08 was 117. This compares to 85 in 2006/07. The average number of new claims received per quarter in 2007/08 was 29. (Appendix 1, Chart 1).

4. In March 2007 the total number of ongoing ET claims was 66 and in March 2008 this had risen to 80. (Appendix 1, Chart 2). This includes several multiple claims (i.e. separate claims brought by the same Claimant). As at March 2008, 69 Claimants had lodged 80 claims.

5. An analysis of new claims received during 2007/08, compared to 2006/07, indicates an increase in the level of claims from three areas i.e. age discrimination, disability discrimination and unfair dismissal. No other significant issue emerges. Previous statistics from the Tribunal Service have shown that the numbers of cases brought to employment tribunal increased in 2005/06 and 2006/07. Figures for 2007/08 have not been published to date.

6. The Employment Equality (Age) Regulations came into force on 1 October 2006 and in 2006/07 two claims were received (which also included allegations of race and/or sex discrimination). In 2007/08 22 claims were lodged including allegations of age discrimination. Twelve claimants lodged 13 of these claims, which all relate 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 have recently been withdrawn).

7. The number of claims brought under the Disability Discrimination Act (DDA) increased in 2007/08. There were 21 claims which included allegations of disability discrimination lodged in 2006/07 and in 2007/08 this increased to 33. Many of the claims also include allegations of less favourable treatment on the grounds of age, race and/or sex discrimination. In some 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. Ten of the cases lodged in 2006/07 were withdrawn or struck out and 4 of the cases lodged in 2007/08. There are still a high number (eighteen) DDA cases which were lodged in 2007/08 which are still ongoing.

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. A series of workshops are planned. Another meeting took place with a Claimant to discuss issues regarding the FAW and transfer processes. This was followed with discussions with the Practice Support Team and Workforce Planning Unit.

9. In 2007/08, seven claims were lodged under the Employment Equality (Religion or Belief) Regulations 2003 compared to nine claims in the equivalent period in 2006/07. Nearly all the 2007/08 claims also involved allegations of race discrimination. There were three claims lodged under the Employment Equality (Sexual Orientation) Regulations 2003 lodged in 2007/08 compared to five claims in 2006/07.

Ranks and bands of personnel lodging ETs

10. In 2007/08 police officers lodged 52 (44%) of the 117 claims. This compares to 46 (54%) of the total 85 claims lodged in 2006/07. Police officers accounted for 63% of corporate strength figures as at March 2008. (Appendix 1, Table 1 & 2).

11. In 2007/08 police staff lodged 59 (50%) of the total number of claims lodged. This compares to 32 (38%) of the total number of claims in 2006/07. Police staff accounted for 37% of corporate strength figures as at March 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 2007/08 there were a significant number of claims (thirteen) lodged by Band Ds but all these relate to the multiple age discrimination claim, now withdrawn. There were also 4 claims from ex-Band Ds and there was a significant increase in the numbers of claims from ex-Band Es in 2007/08. The majority of these claims were for unfair dismissal. Data from the HR Practice Support Team indicates that there was only a small increase in the number of dismissals during this period for these bands. Numbers of claims from PCSOs remain at similar levels i.e. ten claims lodged in 2007/08 and eight claims lodged in total in 2006/07.

Diversity information

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

Gender

15. In 2007/08, 40 claims (34%) were lodged by female police officers/staff compared to 30 cases (35%) in 2006/07. 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. 68 claims (58%) were lodged by white police officers/staff, 14 claims (12%) by black police officers/staff, 15 claims (13%) by Asian police officers/staff, four (3%) by other groups and 16 (14%) were unknown.

17. The ethnicity profile of claimants in 2006/07 is 43 claims (51%) by white police officers/staff, 15 (17%) by black police officers/staff, 16 (19%) by Asian police officers/staff, one (1%) by other groups and 10 (12%) unknown.

18. In both number and percentage terms there has been an increase in the number of claims from white officers and staff in 2007/08 compared to 2006/07. In 2007/08 the total percentage of all claims brought by black and minority ethnic police officers/staff was 28%. This compares to 38% in 2006/07. BME staff accounted for 14% of corporate strength figures as at March 2008. Although in percentage terms there has been a reduction in claims in 2007/08 from BME staff compared to 2006/07 the actual number of claims lodged is at the same level.

Timeliness

19. In 2007/08 19 cases took more than 400 days to reach a conclusion and in 2006/07 11 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 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 require a series of preliminary hearings, 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 2008 Race discrimination claims accounted for 18% of ongoing claims, Sex discrimination 14%, Disability discrimination 16%, unfair/constructive dismissal 11%, sexual orientation 1% and other 1%. Claims brought under several jurisdictions (grounds for complaint) accounted for the largest percentage of claims (39%). There is an increasing trend for claims to cover more than one jurisdiction e.g. sex and race discrimination and sexual orientation. (Appendix 1, Table 4).

Results

24. An examination of ET outcomes for 2006/07 (Appendix 1, Table 5) indicates that 34% of cases concluded were withdrawn, 17% struck out by the Tribunal and 38% of claims were settled. 10% of claims were won at tribunal and 1% (one claim) was lost. It should be noted that some of these figures comprise multiple claims by a single claimant.

25. In 2007/08 (Appendix 1, Table 6) 43% of claims were withdrawn by claimants and 12% of claims were struck out by the Tribunal for want of jurisdiction. 36% of claims were settled. 6% of claims were won at tribunal and 3% (i.e. 3 cases, 2 of which were heard together as one case) 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 2008 there were 40 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 now take place with the Chairman of the PSCC to review all current significant cases. Details of high risk and significant cases ongoing as at of 13 June 2008 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.

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. Good practice advice and learning is identified for inclusion on the HR ET Unit intranet site, which is available to the entire MPS workforce. 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.

31. Some recent examples of local and organisational learning identified from cases involved the MPS recruitment processes (DDA considerations), flexible working and police staff disciplinary practices and processes.

32. 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. 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 (members only)

E. Background papers

None

F. Contact details

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

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