There are a number of tactics that can be deployed by people who are set on bringing Employment Tribunal claims. Often the individual perceives that the tactic will give them some commercial or negotiating advantage, but we also see cases where it seems that the main motivation is to cause an administrative burden on the employer and/or embarrassment.
This article discusses some of the pre-litigation tactics that we see used in practice and includes some hints and tips for employers who are faced with dealing with them.
Tactics during the Dismissal Procedure
Most employers have seen the problem at one time or another. A valid formal procedure, perhaps involving disciplinary or capability issues, is deliberately clouded by the employee with irrelevant, or sometimes peripherally relevant, grievances and complaints.
So how can an employer respond to such tactics without getting caught in a lengthy process which has the effect of vastly delaying a valid procedure? We acknowledge that this isn’t always easy.
The first question to ask is does the issue that has been raised by the employee have any implications on the fairness of the main procedure? If not, there should be no reason for the process to be delayed. Perhaps the concerns that have been raised can be dealt with appropriately at the appeal stage? In other circumstances there may be merit it commencing an entirely separate process to consider the complaints. This can, for example, be the case where whistleblowing allegations are raised and it is in the employer’s interests to make it clear that the decision maker in the main process has not been influenced by the allegations. This should help to demonstrate that there is no causal link between the whistleblowing allegation and any detriment that the employee may subsequently suffer as a result of the main procedure.
Subject Access Requests
Subject access requests made under the Data Protection Act 1998 can place an enormous administrative burden on employers. Part of the problem is that much of the language used in the Act is of its time and did not necessarily anticipate the vast quantities of searchable electronic data that is now at the fingertips of large organisations.
They are often used by individuals to “fish” for information to found an employment Tribunal claim months prior to the time when they would otherwise have any right to disclosure under an Employment Tribunal process.
Employers are required to comply with a subject access request promptly and within 40 days of receipt. Employers are not required to respond unless they have received (if they have asked for them) (1) a £10 fee (2) evidence to confirm the identity of the individual and (3) any information necessary to locate the information sought. The last of these requirements can provide a helpful tool to require further specifics which may allow the employer to narrow the scope of the search, but can simply put off the inevitable. The recently published Code of Practice issued by the ICO makes it clear that it is very difficult for employers to avoid extensive searches. Ultimately, an employer must decide how extensively to conduct the search and may rely on the fact that complaints about the scope of searches are relatively uncommon and the fines for non-compliance are not prohibitive.
Once a search has been undertaken, it is often advisable for employers to provide some explanation as to the scope of their search. This can cut down on further correspondence and criticism from the individual.
At one time discrimination questionnaires were widely used by individuals as a tool to fish for information pre-litigation and/or to place the employer under pressure or embarrassment. Where wide questions are asked or an excessive amount of information is requested it has always been important for an employer to consider what inference could be drawn from a failure to respond. Where the information was irrelevant to the individual, the answer was often none.
The experience of the team at Fox Williams has been that, generally speaking, the use of discrimination questionnaires is less common these days. They are now due to be abolished on 6 April 2014. They will be replaced by a new informal approach which is set out in guidance now issued by ACAS. The Guidance includes advice on how individuals can ask questions and why employers should respond.
Notification to Third Parties – Regulators, Clients and Media
The purpose of this tactic is often embarrassment of the employer and pressure to settle. It is a card the individual can only play once so most individuals will be reluctant to do so until they are really sure that it is in their interests and the timing is right.
If the threat is exposure to the Regulator, often the best tactic from an unconcerned employer can be to inform the regulator to expect the contact.
Client contacts need to be handled more carefully, but most other employers will be alive to the occasional difficulties that employers will face and will only expect you to manage the situation to minimise the implications for their business. Often a frank discussion with the right person can nullify any threat here.
The media are less predictable. It is sometimes not the best advice to contact them before the individual because you can never be certain of the perspective that they will take on the story. Most employment disputes will, in reality, be of no interest to the media.
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