Employment Tribunal strategy and oversight

02/09
24 March 2009
MPA briefing paper 02/2009

Author: Esme Crowther, Head of HR ET Unit

This briefing paper has been prepared to inform members and staff. It is not a committee report and no decisions are required.

Summary

1. This report is intended to explain to the MPA how the MPS manages employment tribunal claims brought against the Commissioner and the current arrangements for MPA oversight.

Employment Tribunal management

2. The HR Services Employment Tribunal Unit (ETU) manages the corporate response to employment tribunal (ET) claims brought against the Commissioner. Sometimes such claims are also made against named individual members of the MPS acting in their official capacity. The ETU acts 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 to the lawyers on the strategy to be adopted on each claim.

3. When new claims are received local management including the appropriate Business Manager are given sight of the originating application and supporting material from the ETU. This not only informs these key personnel of the nature of the claim but also provides them with information about the availability of support for all the parties involved in any claim in case of media attention.

4. On receipt, cases are assessed in accordance with the MPA/MPS Protocol for the Provision of Information to the MPA on Employment Tribunal Cases and Grievances (April 2006). This Protocol includes a set of criteria for establishing the most significant cases, on a category A to C basis with A being the most potentially damaging to the MPA/MPS. These cases are the subject of weekly reports to the Authority. Clearly these classifications change over time as more details are established, new facts emerge or media interest is generated. Approximately half of all current ET claims are assessed as significant at any time. A further weekly report on all non-significant cases is provided to senior management in the HR Directorate.

5. ETU Case Managers will also undertake a review of a newly received ET claim to consider whether the matter appears suitable for early resolution. In many cases a process will already be in train that may in itself provide a means of resolving the matter, for example a Fairness at Work procedure. Consideration of the potential for early resolution continues throughout the life of a claim. There is a requirement to do so at least quarterly and this process is recorded on the case file.

6. DLS or external solicitors, to whom less complex cases are sometimes outsourced, gather all the relevant documentation and take statements from witnesses to prepare the Commissioner's response to a claim. DLS always endeavour to provide an assessment of the merits of the claim at the earliest possible stage, where appropriate involving external specialist employment law counsel. However, the short time limit of three months for lodging a claim and the informal nature of the Employment Tribunal process sometimes means that only an outline statement of the claim is provided at this stage and further information has to be requested from the Claimant before a proper assessment can be made. After both parties have disclosed relevant documentation and witness statements have been obtained a case conference with counsel and the DLS/external lawyer generally takes place at which key witnesses attend so that a more detailed assessment can be formed of the Commissioner's case and how particular witnesses will present their evidence. ETU Case Managers also attend such conferences to form their own view of the witnesses and the evidence. At this point, counsel will be asked to provide detailed written advice as to the percentage prospects of the MPS successfully resisting the claim and an assessment of the financial risks should the claim succeed. The interval between the receipt of an ET claim and the hearing itself is much shorter in relation to Employment Tribunal claims than other types of civil claim and this final legal assessment of the claim can sometimes only be provided quite shortly before the hearing as it is only at this stage that disclosure of all necessary documentation by both parties has taken place and exchange of their witness evidence.

7. The legal advice forms only one element for consideration by the ETU Case Manager in determining the strategy to be adopted in respect of a claim. When strategic decisions have to be taken the appropriate local senior managers are generally invited to express a view unless this is already apparent. Whilst this will be taken into consideration, the final decision on case strategy rests with the ETU or senior management in the HR Directorate who have line responsibility for all these matters and who take a ‘senior client’ role in respect of the most high profile or high risk cases.

8. Other factors which may be taken into consideration when determining strategy could include the potential for damaging publicity (although this tends to be inevitable as the media will simply reflect the allegations of the claimant in any high profile ET claim against the Commissioner regardless of counter argument or outcome), the risk to initiatives or other significant work in progress, timing of the hearing, impact of the stance taken on internal and external communities including public confidence, health and welfare considerations in respect of the various parties and any value to the MPS or the police service nationally in obtaining a ruling on an issue of significance. Clearly the factors to be taken into account will vary from case to case and there can be no fixed criteria to apply in each and every case.

9. The ETU is part of the MPA/MPS Risk Management system that provides for early identification of those cases that pose the greatest risk to the MPS/MPA. Fortnightly meetings are held which are attended by representatives from DPS, DLS, DPA, ETU, HR Communications and the MPA. This group, which is chaired by Commander DPS, considers litigation and general risks to the MPA/MPS posed by the most significant civil cases, inquests, police officer and police staff disciplinary processes and related criminal proceedings as well as employment tribunals. This forum provides an opportunity to pool information and identify potential ‘hot spots’ or periods when a number of matters may attract press interest so that there can be co-ordinated corporate risk management rather than a fragmented response. As a high-risk matter draws close to a hearing date it is likely to receive closer scrutiny by this group.

10. The MPA/MPS Protocol referred to earlier in this paper requires that six-monthly performance reports on ETs be provided to the MPA Strategic and Operational Policing (SOP) Committee (formerly to the MPA Professional Standards Committee). This paper includes statistics and analysis on new and on-going claims, ranks and bands of claimants, location and types of claim, timeliness, diversity data and results. Financial information on settlements and tribunal awards is provided to the SOP Committee as an exempt agenda item. Senior staff from the ETU attend the SOP Committee meeting to present the paper and to respond to questions from members. Each time the performance paper is provided to Committee a case list with brief details of all current ET claims (claimant names removed) is available to members of the Committee for perusal. It is understood that members rarely take the opportunity to review the case list. On the last occasion a paper went before the SOP Committee (February 2009) no member took up this opportunity to review current claims. Senior staff from the ETU also meet informally with the Chair of the MPA SOP Committee to discuss all current significant cases.

MPA financial authority

11. The Protocol referred to earlier in this paper includes the arrangements to be followed to obtain Authority approval to settle certain cases. These are defined as ‘any case with the potential to cause real damage to the Authority or to the Service, for example it involves a high profile claimant or an ACPO rank police officer or a member of MPS Management Board; there is a particular public interest in the case (i.e. claims of persistent harassment or discrimination over a sustained period of time, or it arises from a targeted operation against a police officer or police staff; there is a real risk that the MPS or MPA will be exposed to serious public criticism or that serious weakness in organisation or policy or procedures will be revealed.

12. Such cases are notified to the Chief Executive who makes arrangements for the case to be considered and determined. Requests for financial authority are often made shortly before a claim goes to a tribunal hearing as it is only at a late stage that the legal team are in a position to give a definitive view on the merits and value of the claim for the reasons given in paragraph 5 above. This has then to be presented as a formal paper to the Authority with a full summary of the case as well as the legal opinion and settlement proposals endorsed by senior management in both DLS and HR Directorate. The paper will contain a full assessment of the Commissioner’s vulnerability in any claim. This will highlight any difficulties over particular evidence, plus the financial risk at hearing if the claim succeeded and the authority sought as an upper limit for negotiation purposes. Given this highly sensitive content, maintenance of the utmost confidentiality is vital as any breach could result in the derailing of the negotiation process, leaks to the press, complaints of victimisation from the Claimant and to a greater sum of public money being paid than would otherwise have been necessary. High profile cases are often settled on confidential terms which bind both sides to maintain silence on both the events that gave rise to the claim and the terms of settlement. A breach of this could result in the claim being revived.

Learning activities

13. Learning from ET cases is a key aspect in the work of the ETU. The ETU Performance and Learning Manager works closely with the ET Case Managers to identify and draw out local and organisational learning from ET claims. Also DLS and external lawyers identify to the ETU any learning points from their perspective. A range of means are utilised to share organisational learning, in addition to the ETU 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. Some examples of learning activity are given below:

• 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

14. Debriefings of the Commissioner’s witnesses and senior management have been undertaken by the ETU 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.

Equality and diversity implications

15. 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.

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