Employers have enough on their plate with Omicron so if you’re on the receiving end of a potential Tribunal claim you may be at the end of your tether… I’ve written this article is to provide guidance on how to reduce the burden on your organisation and increase the prospect of a prompt successful outcome.
Introduction
Employers have enough on their plate just now so if you’re on the receiving end of a potential Tribunal claim you’re probably at the end of your tether… and the problem with employment disputes is there’s no upside. Even if you win all you get is a bill and a long list of lost opportunity!
But it doesn’t have to be this way and to help formulate your thoughts, I’ve written this article to give you some insight/ideas on how you can improve your fortunes. I’ve reduced some complex legal principles to ordinary language…summarising how I dealt with last year’s cases of mine and how a narrow point dispensed with the need for a full hearing.
The others, thankfully all went away before the need to go near a tribunal.
The cost of payoffs
If you want to settle a case, you can try a ‘protected conversation’… Any deal can be confirmed in a binding Settlement Agreement with closure and control over the employee’s conduct going forward. But a word of caution…a habit of doing this has consequences…employees can be indiscreet leading to ‘copycat’ claims which creates greater costs in the longer term and undermines your authority.
Putting in a sound defence and securing a victory (particularly if this is done narrowly and efficiently) can be a deterrent.
How not to react
After 30 years in the job, I’m surprised that the same approach is usually followed by employers and their lawyers… but then I’m not at all surprised that the same outcome happens- large pay out after months of a ‘robust’ this or the ‘strong merits’ that…
This normally happens because the facts don’t support the tough language or simply because an employer can’t hack the costs and disruption anymore. Remember, you’re only as good as the evidence and that may come from very modest sources: a cleaner who saw what happened…a modest email.
Don’t overreact or box yourself in a corner- avoid aggressive or high- handed language, or any assertions of what is true. Stabilise things, make a quiet space…to think.
Many employers take the bait with expansive legal claims (sex, race, whistleblowing…etc. etc.) investigating all allegations in their glorious (if pointless) detail. But this approach inevitably inflates the volume of information to be addressed, the length of statements, legal arguments, and days at the tribunal…and legal costs. Worst of all it requires many witnesses who then become a large audience at the hearing- and your witnesses may not all be genuine allies (they may even be friends of the ex-employee or have their own exit agenda) and walls at work do have ears!
The strain of addressing expansive claims creates unmanageable burdens which start to make even inflated offers to settle attractive- as does the prospect of a very public fall from grace.
A proportionate response
Delay, silence, or a negative response from you will help an employee with their claim and even form part of a discrimination or whistle-blowing case (as victimisation or a detriment). Delaying a response to a grievance can lead to a constructive dismissal finding. To settle things down:
Steps you can take
Lawyers’ bills have a special reputation but there’s a lot you can do to help towards a successful outcome and managing costs:
Legal diagnosis
Getting everything together up front helps your lawyer assess the real issues: topics to which all evidence and law can be sensibly directed rather than untrammelled accounts… Is there a ‘killer’ point?
Rather than wait for tribunal directions distilling the information at the beginning will help your legal team advise you. You may even have no defence in which case better not to bang on about the merits so much and find a way of sorting out the problem!
In fact, admitting things when you can’t actually defend them is very effective, killing the debate (don’t forget there will an online tribunal decision with all the facts- do you really want all that laundry cleaned in public?!) And where there are multiple claims admitting things can improve your credibility on the points you do intend to defend…and result in lower awards of compensation- a genuine apology in discrimination cases (with remedial steps) stops awards for injury to feelings continuing beyond it.
Strike out?
Most managers ask about strike out, but this is only realistic where there is a single point of law or evidence which makes the employee’s case have no reasonable prospect of succeeding. A Tribunal will not do this where there is witness evidence to be heard or where there is any doubt about the merits.
A good example of a strike out is R E v Slough Children’s Services Trust, a case of mine last year. Mr E adopted an expansive approach to issues when he resigned to look after his partner, asserting that my client refused his flexible working request as a detriment because he had ‘blown the whistle’ many months earlier and also that it was discriminatory because he was a man.
There was the usual vast amount of allegation and evidence, but the ‘killer point’ was whether RE had ever in fact raised any protected disclosure. He had complained about a comment by a trainer, but the judge agreed with us: the comment was not a ‘legal failure.’
It is always helpful to a simple, clear positive case. In this case, the refusal of the Flexible Working request was a normal management decision. RE didn’t want to work any afternoon and in a care environment this would have nor served the interests of the people who should expect it. This helped with the remaining sex discrimination assertion. Yes, some women had FW requests granted but not to the degree RE was asking for (every afternoon at home) so there was no comparator.
Without a disclosure his reams of detriments were found to be pointless…and the bundle was reduced to a handful of pages.
A word of caution: applying for- and being refused- a Strike Out is a negative: difficult employees take a simplistic view of a short- term win as an indication that they are going to win at the main hearing. It tends to make them even more bullish adding another layer of legal costs when you’d have been better just getting onto trial.
Where there are multiple claims it’s often better to apply for strike out of just part of the claim (ideally if that part carries a volume of evidence). There normally isn’t time at the preliminary stage to hear a strike out on all claims if an employee has thrown the kitchen sink at you!
A deposit?
A much more modest (and achievable) application than Strike Out is for a Deposit Order (a payment into the tribunal) towards legal costs. Here the test is much lower than strike out- little (instead of no) reasonable prospect of succeeding… A judge is much more likely to make a deposit order because it is less draconian. In another case of mine last year where the employee protested lack of finances to pay a deposit, I limited our application to a measly £100 and got it but strategically it’s not cover for wasted legal costs which gave the employer the edge, it was the finding by a judge on the likely merits impacts on confidence in taking the case all the way. Difficult employees are very polarised, and no amount of reasoning or explanation seems to work… but from a judge, well that’s a different matter!
And an employee who proceeds with all or part of a case where a Deposit Order has been made faces a strong prospect of being ordered to pay costs relating to the point being addressed at the full hearing. In this situation the risk assessment of the employee is reversed- finally they do have something to lose…
Misrepresentation
One of my favourite cases was R S v Onyx Ltd. Here the Claimant raised 60 (!) different grievances and tried to position himself as a ‘whistleblower’ in what was described by the judge as a ‘thinly veiled attempt at blackmail.’
Egged on by his unqualified sister, RS presented a mouth-watering Schedule of Loss for £200,000 including the cost of his ‘herbal remedies’!
Addressing all 60 grievances was an obvious fool’s errand so instead we profiled RS and had a good look at RS and what he’d been up to.
There certainly was a lot of stuff to trawl through but in his CV, I noticed an unusual reference to a period as just ‘travelling’ and on a hunch I rang one of the previous employers on his CV. Just from the tone I realised something wasn’t quite right! It became clear that RS had not been travelling and had been involved in some very dubious activities at that time and had left the employer under a cloud.
The judge found that one word (travelling) on RS’s CV was a material misrepresentation and the effect of this (in good old contract law) was to rescind his contract of employment and all rights under it including his bogus claims- so we never had to address his fanciful list.
Due to RS’ conduct of the case, he was also ordered to pay £20,000 towards my client’s costs.
Medical evidence
In SM v Lauren Richards Ltd my client received a very expansive disability discrimination claim. But without 2 years’ employment SM couldn’t bring an unfair dismissal claim. SM singularly failed to provide appropriate medical evidence to establish that she had a relevant disability, and we had the case struck out on this narrow point. SM in fact wrote her own medical report which didn’t go down well with the judge!
It's good to talk…
In another case last year AM v Zeal UK Ltd AM brought the predictable brace of claims: whistle-blowing age and sex discrimination etc. etc. We put in a skeletal defence and along the way my client and I got the impression that AM was basically being ‘egged on’ by a former colleague who was bringing a similar claim and so on a whim I just picked up the phone and asked if he really wanted to pursue things to a tribunal and if he dropped his case that would be the end of it… Oddly, Mr AM (who was actually quite reasonable on the phone and quite different to the character in the paperwork) seemed quite surprised that this option was even open to him and he readily agreed to my polite suggestion… so off he went. The End!
Common sense
For some reason people tend to behave very oddly when the Law is involved... Over the years I’ve learned that Common Sense is generally a lot more helpful (and cheaper) than legal know how. So, here’s my attempt to reduce Law to behaviour standards most people are normally already aware of:
Being pointlessly tough or aggressive only serves to increase the burden on you. A good example is pinning a misconduct/performance allegation on an employee when there may be a softer reason for letting them go such as redundancy or business change.
Simple, appreciable points are more compelling. Try to reduce your case to something which an intelligent teenager would ‘buy’ and don’t rely on multiple explanations for your position because each tends to be mutually destructive of the other! It makes you look like a newly trained double- glazing salesman.
If you’ve got a brilliant point or better still a piece of evidence, then share it asap. Parties to a dispute have been encouraged to this for many years but oddly they often hide their best until last which makes the other person’s holding out understandable. Employees often complain about being kept in the dark which breeds resentment.
At tribunal the Respondent’s room it looks like day 1 of a Harrods sale: HR, a solicitor, a barrister, and all witnesses sitting throughout the whole process and trailing out like loyal ducklings every time there’s a break. This looks bad but strategically the more witnesses the more ‘cat herding’ you’ll have to do. On cross-examination one tiny breach in your wall can lead to your case tumbling.
You may need to dismiss an employee, but normally you have a common interest in their future success. If they get a job quickly then the value of their claim will make suing unworthwhile and any decent employment lawyer will get this.
There are lots of things you can do to see an employee on their way, and you may want to offer these even outside of a Settlement Agreement: references, a friendly announcement to their contacts, confidentiality, outplacement etc.
With a good job your ex- employee now has something to lose and may well be less upset… I love a victimless victory!
