Our blog

Unlimited pain all round

One of the most interesting employment cases at the moment is that of Michalek V's Mid York's NHS. In this case the employment tribunal upheld the sex and race discrimination claims of Ms Michelek after they found that she had been subjected to a concerted plan of action designed to end her employment with mid Yorkshire Hospitals NHS trust. 

The tribunal heard evidence of unjustified complaints about her, repeated reference to her Polish origin, questions about her capability because she trained in Poland, a lengthy and wholly unauthorised period of suspension, and a bogus disciplinary procedure resulting in her being dismissed for no good or justifiable reason. The tribunal was “outraged” at the way in which the employer behaved. It held the Trust and three senior managers jointly and severally liable and ordered them to pay Michalek £4.4 million as compensation. This award is one of the largest ever awarded in a discrimination case in the UK.
The case is a complex one and is worth looking at in detail but I will not attempt to do in this blog.
For employers there are a number of lessons to be learnt. In the cold light of day with the benefit of hindsight the employer may well recognise that they have made huge and unjustifiable errors and judgements. In the midst of a case it is not always so easy for an employer to recognise what they are getting into. In my experience of employment tribunals and complaints from staff it is worth considering a number of key issues to avoid costly and damaging employment cases.
·         Ensure that there is clarity in the organisation of the values that are important and what will and won’t be tolerated. A glossy values statement that the CE has framed on the wall does not do it. Staff need to understand the specifics really clearly. I have worked in organisations where Humility and Honesty were quite clearly important in the written documents but were absent in the antics of some of the senior managers who demonstrated the opposite on a regular basis. Such behaviour is usually known by staff who know that the leadership is demonstrating nothing more than hypocrisy whilst asking the staff to behave differently.  
·         Managers must be trained in dealing with the people issues, often the assumption is that these are merely common sense and the more technical areas such as Finance require more attention. However when the people issues go wrong they are the ones that hit both the finances and the reputation of organisations and individuals equally, and also how these cases impact on existing staff.
·         Make sure that the behavioural requirements of all employees are stated plainly simply and are both understood and discussed on a regular basis. An example of this is conflicts of interest.  What do these mean in practice? A good example was mentioned in the press recently of a senior manager dismissed for breaching the social media policy of the organisation by posting his CV onto Linkedin and ticking the box related to being interested in new options. His defence was that it was not clear in the policy and a number of other people had done the same and had not been disciplined. Which brings me to my next point.
·         Employment tribunals get really really angry if they see inconsistencies in treatment. This could be behaviour punished in one member of staff but ignored in more senior staff. For example the senior manager who wants to take action against someone for what they might see as a minor infringement of the rules whilst they are exhibiting very poor behaviour without sanctions. I know one senior executive who has spent his whole career involved in serial affairs with young and easily influenced junior staff whilst talking piously about integrity at every turn. Everyone in the organisation knew and he was considered a huge risk in terms of his judgement which eventually meant that his career prospects became limited as more and more people became aware of his indiscretions and lack of judgement.
·          Remember that all employees take their reputations very seriously and that claims of poor performance and unjustified disciplinary action can destroy careers and incur massive costs such as in the case of Michalek. If staff are accused of things that they have not done or they are treated unfairly they will visit their lawyers at the earliest possible opportunity.  
·         HR should be seen as a huge asset to an organisation in these matters. The best HR staff will pick up issues early and swift mediation and discussion can avoid costly litigation where the organisation and the individual will rarely benefit.
·         Review cases using a fresh perspective. It's sometimes difficult to have a really objective stance on a case when you have been dealing with it for a while. It was often my practice to bring someone into an organisation for a while on a short term assignment to review cases that we had been dealing with for a while. A different view and the ability to use an outsider who had not been involved in the case were incredibly helpful and often gave us a completely new perspective on something that we had got so close to we could not be objective about anymore.
·         Where there is a serious disciplinary case it must be investigated fairly and objectively by an independent person in line with ACAS guidance. Beware assuming that cases are cut and dried as few are. Where they are and they clearly breach the values and rules of the organisation as long as they are dealt with in line with the organisations policies and with natural justice in mind. A tribunal will in most cases not find fault.
·         Learn from other organisations who have high levels of engagement amongst their staff and few complaints. Such organisations are usually willing to share their practices with others as they are proud of them.
·         Facilitate groups of employees who can feedback to management their experience of working in the organisation. Staff representative groups can be extremely helpful in identifying changes that need to be made long before they become an issue. 
·         Pay proper attention to understanding the issues of Race and Sex discrimination and the differences between direct and indirect discrimination. Managers need to understand with clarity their obligations and accountabilities. It is sad that in 2012 we still see cases where individuals are treated inappropriately because of their gender, ethnic origin or race. Employers cannot be complacent as this case shows. Discrimination still exists in organisations and it is a costly business both financially and personally.
What do you think? 




You are welcome to leave a comment




Enter the code so we know you are human (use lower case only):
[ Different Image ] CAPTCHA Image

Keep ahead of the news in HR.

Sign-up for our regular updates.