eleanor@eleanordeem.com
It’s a common theme when it comes to employment law and fair management of staff that as an employer you’re supposed to have considered various things. Decisions have to be ‘reasonable’, and part of demonstrating that reasonableness is proving that a decision with negative consequences was a last resort, and that you considered other options carefully.
Dismissing someone for capability? Fine, if you’ve considered all possible adjustments, redeployments or alternative duties. Undertaking a redundancy process? Fine to dismiss for redundancy but you need to show you’ve made every effort to avoid those redundancies. You also need to show that any suggestions, concerns or queries raised during consultation were heard, considered and why they were rejected.
Received a complaint that a decision you’ve made was discriminatory? You’ll need to be able to demonstrate that there is a different reason for that decision.
Wanting to impose a universal change to terms and conditions such as a shift pattern, which may have a disproportionate impact on (usually) women with caring responsibilities? To avoid/defend a claim of indirect discrimination, you’ll need to be able to show that you considered that impact, looked at other options and why these were ultimately rejected.
The trouble is, while all of this would be crucial to defending your actions in an employment tribunal, it isn’t something you’d normally include in correspondence with the employee at the time. So unless you document that thought process somehow, you could end up with a situation where you’re having to try to explain that you did consider all these things, but are unable to prove it.
So don’t just have conversations with managers where you consider all of these things. Have those conversations and then confirm them in writing. Or write an email stating the position, highlighting the things you’ve considered and the outcome. Just write a note for the record and save it somewhere if necessary.
But when going through any potentially contentious process, make sure you identify early on what things a tribunal might have expected you to consider and record somewhere that you have done just that, and what the outcome of those considerations was.
