No company wants to be in the headlines for losing an Employment Tribunal case with an employee. Follow our three-point plan to avoid hitting the front page for the wrong reason.
The old adage, “all publicity is good publicity” may be true in some quarters; but few employers would want to have their organisation associated with some of last year’s more interesting Employment Tribunal cases.
For instance, Legoland probably did not enjoy being involved in a disability discrimination claim, after it gave a long service award, consisting of an especially designed Lego man with his arm in a sling, to an employee with a disabled arm.
Equally, the Department for Work and Pensions could probably have done without becoming embroiled in a tribunal claim about whether it was discriminatory to insist that a male worker wore a collar and tie to work.
The Government has recently introduced legislation prohibiting discrimination on the grounds of sexual orientation and religious belief. This will undoubtedly lead to some cases that will cause more than a little adverse publicity to employers this year.
So, with an increasing amount of employment legislation on the horizon, what can employers do to stop themselves becoming part of tomorrow’s tabloid headlines?
Avoid tribunal claims in the first place
Avoiding tribunal claims in the first place is often easier said than done. However, the starting point should be to review all your existing employment contracts, policies and procedures.
The new regulations outlawing discrimination on the grounds of sexual orientation and religious belief provide an ideal trigger to do this. Employers should take legal advice as to whether your contracts, policies and procedures are lawful and appropriate. Your documents and practices could be exposing you to tribunal claims without you knowing it.
Training is also very important. As the law changes it is important that human resources professionals keep up to date. However, it is not enough for your HR department to be up to speed with employment law, if your managers and employees are not. It is often the actions of an untrained manager or other employee that leads to embarrassing tribunal claims.
Mechanisms for dealing with problems and disputes can also be important in avoiding claims. Fostering a culture where employees feel able to raise issues, in the knowledge that such issues will be dealt with appropriately, is probably one of the simplest ways of sorting problems before they go to far.
If complaints and grievances are simply swept under the carpet or ignored, the employee will be left with no option but to go to an Employment Tribunal. Also, if your disciplinary procedures are not properly followed, or any disciplinary decisions are not respected, then employees will not bother to use your internal appeal process; but will go straight to tribunal.
It is therefore important to ensure that disciplinary and grievance procedures are adequate and that managers are trained in how to handle employees’ grievances.
Settle claims if possible
Sometimes it is not possible to avoid tribunal claims. For various reasons, the employee may feel that there is no option but to make an Employment Tribunal claim.
So, if a claim is brought what can be done to minimise the damage? An agreed settlement is the obvious solution. If the case is settled before it is heard by the Employment Tribunal then the prospects of damaging publicity can be significantly reduced by the use of a confidentiality clause as part of the terms of settlement.
However some employers, as a matter of policy, adopt a robust approach to claims from the outset and rapidly become entrenched in very personal litigation. Also, some employers are wary of settlement because they feel it will open the floodgates to further claims from workers. They therefore feel obliged to fight all cases to make a point to other employees. Fighting on a principle should not be done lightly, as it often leads to a bitter and expensive case.
This attitude is perhaps understandable in today’s litigious times. However, it is probably unrealistic to think that by settling one claim an employer will open the floodgates to dozens more. Often, the reality is that where an employer has a largely disgruntled workforce there will be problems regardless of how any individual case is dealt with.
Rather than take an unreasonably tough line with an individual case, employers would be better off devoting time and attention to addressing the underlying problems for employees, including the issues that resulted in the employee going to tribunal. Happy employees are much less likely to jeopardise the relationship with their employer by bringing tribunal claims.
If an employee’s claim is genuine and throws up a real problem then an employer would be best advised to try to address it, rather that fighting the case. There is little to be gained by fighting a lost cause and being publicly scolded by an Employment Tribunal.
Despite this, some employers still adopt a ‘fight all cases’ policy. Employers need to ask themselves whether the damage done by settling a case will be any worse than the damage done by fighting a case that is always doomed to fail and then losing at a public hearing.
This shows the importance of taking good legal advice at an early stage. It is always beneficial to ask an independent, legally qualified, third party to look at the facts and give a dispassionate view about the prospects and implications of any claim. A lawyer is unlikely to take the claim as personally as the employer and so should be able to give an objective view. If you are going to fight a case to make a point to other employees it is important to fight one that you are likely to win.
Taking advice at the outset will help to assess the chances of successfully defending the claim. If it is likely to be lost, then the employer should bite the bullet and try to settle early.
Settlement does not automatically mean admitting that you were wrong or that you have to pay huge sums of money. A case can be settled without the employer admitting any fault or liability. Also, things that cost the employer nothing, such as an apology or an agreed reference, can often smooth the way to a reduced amount of compensation.
If there is no option but to fight
Sometimes employers are forced to fight tribunal claims. For example, a disgruntled employee might want their day in tribunal, and be unwilling to settle on any basis. That can often be because, in their eyes, their complaint has been ignored or so badly handled that they want someone else to prove they were right all along.
Equally, the claim might need to be fought because it is so unjustified that settlement is not an option, even on economic grounds. It is also possible, but rare, that a case may raise a novel point of law, which you need guidance on from the tribunal. If this is the case, then there may be no option other than to go to a tribunal hearing.
When faced with this position, there are ways to minimise the damaging impact of a hearing. First, if the case contains genuinely sensitive allegations (for example allegations of a sexual nature in a sexual harassment case) then either party can apply to the tribunal for a restricted reporting order. This means that the press is not free to report all of the facts of the case, as it would be in the ordinary course of events.
Second, the way the case is fought at the tribunal can have a large part to play in how the employer is perceived by both the tribunal and the media. For example, setting out the issues at the outset is always a good idea. If the case involves a novel point of law then it is worth advising the tribunal of this, and confirming that this is why the case has come to a hearing. That way the employer can avoid the impression that they are only fighting because they are unwilling to compromise.
Finally, in potentially high-profile cases, it is worth having draft press releases prepared (one for if the case is won and one if the case is lost). That way an employer will not be caught short if a journalist asks for a comment at the end of the case.
This year will no doubt have its share of strange, funny and serious cases. However, by being proactive, realistic and reasonable, most employers should be able to avoid being the ones in the headlines, for all the wrong reasons.
Simon Rhodes is an employment partner at law firm Lester Aldridge