Some thoughts on not defending the indefensible.

Life is full of up’s and downs. Not everything can go well all the time.

People make mistakes, there are conflicts, sometimes actions have consequences that hadn’t been thought through and intended results don’t happen.

This is the same for organisations as it is people - after all an organisation is just reflective of the people shaping it.

How an organisation (and it's people) responds to something not going well, says a lot about who they are.


I was recently reading through some employment tribunal cases. One case caught my eye because of comments made during the judgement – it was pretty clear that the organisation, not only had things go wrong, but they then continued to exacerbate the situation with their response.

Here just some of the comments the Employment Tribunal made:

“it’s appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.”

“We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”

“The claimant’s compensation shall be uplifted by 20% because of respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance…”

It sounds like this organisation was trying to defend the indefensible.


When it comes to how you treat your employee’s and manage issues, then ACAS

have simple guidance to follow. This is important because it is the minimum standard every organisation should follow because an Employment Tribunal will be looking to see if whether you did.

Look at what policies your company has in relation to people management – if your policies go beyond ACAS guidance, are you following them? If not, why not? The sorts of policies I’m referring to here would be your grievance, disciplinary, anti-harassment and whistleblowing policies – there are of course many more that could be listed.

Think about including mediation as a step in the process – working through issues before they get to the formal stage of grievances being raised, is the way forward as you help your teams to have honest and open conversations to work through conflict. This might mean your teams work together more cohesively in the future. Whilst you won’t prevent every situation, you will reduce the number of cases escalating.

It is also important that you think about your record keeping. Make a note of why you are making your decisions especially if they deviate from guidance or your policies. For example - it might be your policy states a timeline for when things are dealt with. The reality might be you are way outside that and there is good reason – note it down. A year down the line, you might not remember that reason or things could different, but at the time you did that with the best intention. Hindsight is a wonderful thing, but you made decisions at a point in time, with the information you had available at that time, so make sure you record that.


The company I mentioned above doesn’t appeared to have anyone, at any time, stop and think about how they were reacting, what message that was giving out and whether it was helping the situation.

When you think about an investigation / grievance / disciplinary and the impact it can have on those involved and the wider times is huge.

Imagine you are called in on Monday morning and told you are being investigated or you are asked to give information about an investigation into someone else, or you are asked to conduct an investigation into someone in your team. No matter how serious the allegation is, you would be going through a whole world of emotions.

Having a policy which is followed really helps all parties in this scenario. It especially helps the person carrying out the investigation where they personally know those involved. It could be the person making the allegation is someone you are really friendly with OR it could also be they are someone you find difficult. Either way following a defined process is your safety blanket which ensures you deal with them fairly, without your judgement clouding the investigation.

There are also times when it may be worth bringing someone independent in – whether that’s from another part of your organisation, or a third-party expert such as myself, to help.

However you go about it, make sure as part of your process, you build in time to reflect on your actions and ensure you are following the process and the action you are taking is fair. Some organisations have the luxury of having in-house or working with employment lawyers who should be doing this as well.

I would recommend you review your cases, or at least a dip sample of them on a yearly basis to just make sure you have been dotting the I’s and crossing the t’s. When you are not looking at it whilst in the middle of the situation, there are always learnings you can take to improve what you do.

Does your organisation have policies and processes in place for investigations / grievance and disciplinaries which at least, follow the ACAS guidelines?

Do you have checks and balances in place to review what you are doing and ensure you are being fair to reduce the risks of litigation?

Would you find yourself in a position of defending the indefensible or would you know when to stop?

Do you have a variety of ways your people can raise concerns?

If someone spoke up, would your company listen?

Do you have mediation in place? Could your team effectively deal with matters before they get to the stage of a formal grievance being raised?


If any of this concerns you, and you feel you need help, please contact me. If nothing else I hope this post makes you think about reviewing what you currently do – after all it’s a new year and a good time to reset for the year ahead.

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