Avoiding Employment Litigation in 2021

AVOIDING EMPLOYMENT LITIGATIONA tough old year last year is fast becoming a tough new year this year, with plenty going on, lots of stresses and strains and a truckload of workplace conflict too. When people are unhappy or feeling out of sorts, we always see more workplace conflict. People lash out when they are unhappy or unsettled – whatever the cause of it, and people bring legal claims when they are feeling unsupported or powerless. Even if COVID and the global economy is the cause of it, employers should beware the trend this year towards conflict and litigation. Here we have prepared an overview of eight claims employers could potentially face in 2021 and most importantly, how to reduce your exposure.

What can you do to protect your organisation?

Recently we have have seen:

  • Nicola Sturgeon claiming ignorance of 30 sexual harassment claims against 5 of her team.
  • An employee resigning giving no notice and putting in a grievance for victimisation after whistleblowing, after being put on furlough as a response to his raising H&S concerns.
  • A tribunal claim resulting from a businesses’ failure to respond to a grievance previously raised.
  • An underperforming employee who has not been managed for the past 10 years, so it’s a bit of a shock to his system to find out that he is viewed as underperforming – watch this space for a tribunal claim for unfair dismissal and bullying in due course!

30 sexual harassment claims! Wow! If the claims about Nicola Sturgeon are true about knowing about claims of sexual harassment, then taking no action is not acceptable in any shape or form. Every week we can read about one leader or another getting caught out by not taking action in line with established policy and procedure, whether that is ignoring a grievance, turning a blind eye to inappropriate behaviours, not managing misconduct, ignoring a whistleblower, appointing someone without going through the correct process…

Our first words of advice here are be careful not to get tripped up by employment litigation in 2021 because you are too busy focussed on the horizon or not wanting to hear that all is not well in the world. Employees eyes are on the realities and practicalities of their own situations at this current time, so you, the employer, need to be fully aware of those too.

Our second pearl of wisdom is (well, not really a pearl of wisdom as it’s blindingly obvious in our world of process, procedure and litigation 😊) a reminder that ignorance of the law is no excuse when it comes to the courts. Every HR person, director and manager should know and be aware of that.

Common ‘ignorances’ of the law that we often come across:

1. ‘I’m not happy’ is vastly different to ‘my manager has treated me badly as a result of me raising H&S concerns’. Spot the difference! If HR, directors or managers cannot spot the difference and understand the different responses that are required then, to put it bluntly you are in mortal danger of litigation. The first statement includes no specifics and definitely does not refer to any issues relating to contracts, discrimination, whistleblowing or unfair treatment etc. The second one however, does. Whether the complaint is put in writing or not, you need to be on the ball, pick it up, investigate and take appropriate action if that is required.

And remember that just because someone has a degree in HR or an HR job title does not mean they have a good understanding of employment law!

2. ‘I’m telling you this in confidence, but I wanted to let you know that Pete says he is experiencing homophobia. He doesn’t want it to go any further’. I hope your managers, directors and HR know that there is no such thing as raising such an issue in confidence. Once it has been brought to the attention of a formal representative of the company, you have an obligation to act. 100% of your responsibility as a representative of the company is to protect the company – that means that even if someone tells you in confidence, you must respond by saying that you now have a duty to raise that formally and deal with it accordingly. Business first, people’s confidences second.

We recognise that there are sensitivities here and you do not want to lose people’s confidence in you to keep a confidence, so be upfront about how this works and never, ever suggest to someone that you will keep their confidence above protecting the business.

3. ‘Let’s discuss this off the record’. No! if you are acting as a representative of the company (i.e. from supervisor up to CEO, or trustees, HR, non execs etc) there is no opportunity to be ‘off the record’. What they say and what you say can still be raised in a court of law. Thinking that in HR or as a director or manager you can go ‘off the record’ is ill informed.

There are of course legal mechanisms such a ‘protected conversation’ or ‘without prejudice’ discussions but these need to be understood and properly used to provide protection.

4. ‘Bullying’, ‘victimisation’, ‘harassment’, ‘discrimination’, ‘grievance’, ‘unfair treatment’, accident’ etc. are all trigger words. There are hundreds of course and these are just a few of the most common. HR should be on these like a rocket, as should managers and directors. Making a unilateral decision in mid conversation to ignore what is being said is very dangerous indeed. Be disciplined enough to know when to halt the conversation you are having to explore the new issues that are being raised.

We sometimes see an HR person or manager stuck into a disciplinary hearing simply fail to hear or acknowledge what is being said by the employee in a determination to get to the end of the meeting or resolve the issue. That can’t happen. We have to be heads up enough to know how to respond when any ‘trigger’ words are used. Never be fearful of adjourning the meeting to investigate matters further, reconvening when appropriate and in possession of all the facts.

5.‘Just between these four walls’ is another dangerous mindset that displays ignorance of the reach and consequences of the law. Whatever you are cooking up to get around immigration laws, visa issues, restraint of trade issues, to brush whistleblowing or discrimination under the carpet etc just be aware that ‘these four walls’ tend to collapse in on you when a data subject access request comes in and a search of emails reveals stuff that has gone way outside ‘these four walls’.

It is also amazingly common for those privy to a discussion ‘within these four walls’ to later reveal what has been said.

6.‘It wasn’t in writing.’ Again, beware ignoring an issue raised verbally (or informally) These are just as serious as those put in writing and should be given serious attention. No excuse for not taking action just because your employee did not put it in writing and copy in the HR Department. If you know about an issue, get on it!

7.‘You can’t prove it.’ Let us be clear that in an employment tribunal, we are not always dealing with issues that can be proven. The process (which is very different to criminal law) allows both sides to make their point and then for the judge to make an assessment based on the paperwork and testimonies. Just because your employee cannot prove that they were passed over for promotion on grounds of their sex or age for example or just because your employee cannot prove homophobia does not mean that you will win your case in a Tribunal. Be careful not to be complacent. And remember …in cases of discrimination the burden of proof can quickly switch from the Claimant alleging that they were discriminated against (e.g. failure to be promoted) to the Respondent having to prove that the reason for a certain action (failure to promote) wasn’t discrimination.

8. And finally, just because it is in your contract or procedure does not mean you have a legal right to apply or do it. Sometimes you will need to double check your own contract or check your knowledge. Here we draw your attention to the fact that many contracts include detail that cannot legally be included or upheld (life and the law moves on and contracts are often out of date and lacking in detail or otherwise requiring behaviours that have since been outlawed.)

Of course, sometimes contracts are drawn up by those who have no clue what they are doing and as a result inadvertently include clauses or phrases that should not be there (or equally exclude clauses and phrases that should be included).

Caution is advised by us around data protection, restraint of trade, human rights, whistleblowing, deductions from wages, ACAS policy and procedure best practise around discipline and dismissal, immigration laws, vaccination requirements, diversity and inclusion etc. These are all continually changing, being added in or adjusted and taking action based on what a contract says you can do without double checking your facts can land you in hot water.

So that is our whistlestop tour of just 8 common ‘ignorances’ of the law that we come across at Jaluch

It is a complicated world and the fast pace of change, especially with legislation and all things around employment currently being constantly on the move, so please do take time to ensure that your team understand when to hear the ‘warning bells’ that should prompt an investigation or action of some kind. Its an expensive ball to drop if you are sued just because you didn’t know!

Jaluch offers support with bespoke e learning, employment law training for managers, coaching skills for managers as well as supporting with day to day issues that arise including carrying out investigations, drafting letters and chairing formal meetings such as disciplinaries. Please do ask us for details and we guarantee that all of our services can be provided on a non contract basis.

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