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10 Tips For Protecting Yourself Against Disgruntled EmployeesPosted on by Angela Rhodes
How can you protect and prepare yourself for litigation?
As employers, you need to think about what to say and do – it doesn’t matter how big or well managed you think your company is, issues always arise. Here are our top ten tips.
- Engage with the process. The first time we, as HR professionals, may hear about a disgruntled employee is when an ET1 pops up through your letter box. It’s one thing to threaten to bring a claim, but another to issue one, which could be up to 6 months after the event. It’s important to give your full attention to the claim as soon as it’s received so as not to go over the deadline. Employers will, understandably, want to concentrate on their business rather than review the claim – but it won’t go away! Even if you want to settle, is the claimant prepared to do so? Sometimes they want their day in Court or to look for a huge cheque. It may be just an issue of principle. Consider a settlement rather than costs of going through litigation.
- Do disclose everything relevant. Every document, email, letter, memo, etc are disclosable – good or bad! Even emails between managers discussing the employee are disclosable to the Tribunal, no matter who it comes from or how long ago it was written. However, “privileged” correspondence between lawyers is non-disclosable.
- Do make proper document searches and disclosures. Businesses can’t pick and choose which documents are to be disclosed at a hearing. If there are people in the company relevant to the process, then their emails or memo’s are disclosable, for example, those relating to a redundancy process. In most cases, documents will be held in the personnel files, but a search using a phrase, for example, can be used via a word search. Remember – deleted emails can be traced. Tribunals can also make an order for documents to be disclosed.
- Do tell the truth, the whole truth and nothing but the truth. You will be caught out! Witness statements will be prepared as their version of events. Cross examination is designed to catch a witness out. Witnesses may try and conceal something – it’s far, far better to be open and honest in the eyes of the Tribunal. Tribunals also have power to fine employers who have conducted themselves unreasonably and can award a penalty of up to £5000 if you’ve been telling stories. Stick to the facts and tell the truth. No-one likes surprises.
- Don’t close ranks – we’re all human and no-one likes being accused of doing something wrong. What managers need to remember is that sometimes, things do go wrong and then they will go into defence mode – don’t lose sight of the issue. Some managers also have Teflon shoulders: ‘it’s not my fault” so try and limit the damage early on. Such discussions can only be held if everyone wants to have them and are grown up enough to have them so the same mistakes don’t happen again.
- Do accept you were wrong. Tribunals appreciate that businesses cannot be 100% right all the time – they like to look at businesses who have tried to follow their own procedures and who have acted in a reasonable and fair way with their staff. Tribunals are also likely to accept that a mistake has been made, so when in the witness box, admit to it.
- Don’t argue with the defence or the judge/panel or claimant. Accept where you could have done better. When a witness’ judgment has been called into question, ask yourself “could I have done something better?” and “should I have done it differently?”. Thinking ahead could sometimes make you look a bit shifty – just answer the questions honestly.
- Do take ownership of your decisions. Stand by your decisions – you are judged on what you did and the decisions you took, don’t pass the buck as it’s not HR’s fault that you made that decision. You need to justify it. The role of management is to make decisions, however, businesses can help with the processes of training managers to ensure they’re aware of the policies and procedures but managers do need to take their responsibility seriously. We’re here to advise and guide, not to make the decisions for you.
- Don’t write anything down you would not be prepared to read aloud in Court. Emails are evidence, just the same as a formal letter or a memo – remember they’re disclosable, even jokey emails like “of course I wouldn’t employ him, he’s utterly hopeless and has no personality whatsoever, where did you find him?”. Also, Twitter comments or those used on other social media can be used as evidence. Are you happy to stand by your comments?
- Don’t Joke – when you’re at a Tribunal, take the process seriously. Tribunals are serious places and often public. You need to behave accordingly. Looking disinterested or chewing gum are not good. Remember – Tribunals are a Court. If a witness, for example, laughs out loud, the Judge may increase the penalty as they could be disgruntled by this type of behaviour – just like punching the air – so remain neutral.
But do also remember, in almost 20 years no client that has followed our advice has ever been successfully taken to an employment tribunal or fallen foul of any HR related minefield.
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