Companies frequently make some fairly basic mistakes when defending discrimination claims. If you are an HR manager and you have just received notice that one of your ex-employees has decided to pursue a claim for discrimination against the Company, here are some top tips on how to handle things, and how to try to limit the Company’s exposure :
1. Take early advice
An obvious point, but one which is often missed. Ideally, you should try to obtain independent legal advice as early as possible, ideally before the Company’s formal Response is filed to the claim. This will enable the Company to undertake an early assessment of the prospects of successfully defending the claim, and will also ensure that the Response is as robust as possible. Although it is possible to amend a Response later in proceedings, this can be quite tricky and it is usually better to get as many of the points raised in the Company’s defence as possible.
2. Pick your fights
Having taken early legal advice, you need to ensure that the Company is picking its fights. There is perhaps little point in defending an age discrimination claim where an employee has been sent an email by his manager saying that he is being dismissed because someone younger is needed to do the job, if it can be settled for a nominal sum. On the other hand the Company may want to defend the spurious claim for age discrimination being brought by the 47 year old who was dismissed for poor performance and who is being replaced by a 46 year old! It is important to understand the prospects of success of your legal position from an early stage, and to weigh this in the balance against the need to set a precedent (and not be seen to settle too easily) and the potential cost and time involved in fighting the claim. Sometimes the most sensible route forward will be a quick and amicable settlement. Other times, the only option may be fighting the case all the way to a Tribunal.
3. Get the story straight
Even though the case may not reach a Tribunal for another 12 months, it is usually sensible to try to get all the ‘key players’ (i.e. those who are likely to be the main witnesses) together at an early stage to ensure that the Company is clear about what happened in relation to the main events being complained about. This will help identify any key areas of risk for the Company, and will ensure that a consistent explanation is given for key events throughout the litigation process. All too frequently key witnesses contradict what has been said in the formal pleadings, or unhelpful documents surface very late in the process. Consider also asking the key players to identify any emails which they may be aware of which could cause problems (e.g. the “we just want someone younger” email referred to above), so that those responsible for running the defence are aware of problem areas from the outset. It is much better to know about any disastrous emails early on in the proceedings, rather than finding them on the day that disclosure is due, not least because it presents an opportunity to try to settle the claim with the ex-employee, before the ex-employee has seen that smoking gun.
4. Undertake a detailed cost/risk analysis
This is a key point, and is frequently overlooked. Consider the nature of the person bringing the claim. Do they seem genuinely aggrieved, or is this likely to be a ‘nuisance claim’ aimed only at maximising a pay out? Consider the cost of defending the claim. What are the legal fees likely to be, and how much management time is likely to be involved in defending the claim? If you have not defended a discrimination claim before, ensure that you understand the process and how long it is likely to take. The cost should then be weighed against the risks of the Company losing. What are the prospects of the claim succeeding? Is that an acceptable risk? What could the maximum pay-out look like? Since the remedies are loss based, how likely is it that this person will find alternative employment easily? Is there likely to be significant adverse publicity associated with the claim? These are all questions which should be considered at an early stage.
5. Protect any evidence
Ensure that the key players are told not to delete or destroy any evidence. Steps should be taken to retain any records which have already been collated in relation to the complaints, and it is also sensible to start to collate any documents which are likely to be relevant to the claim at an early stage (whether or not they help the Company’s position).
6. Prepare, prepare, prepare
Once a bundle of documents has been agreed, ensure that the witnesses know what documents they are likely to be questioned about in Tribunal. Obviously this should include emails involving them, but they may also be asked about other documents. For example, if you are defending a disability discrimination claim, the managers may well be asked about the medical reports and whether they were aware of the extent of the ex-employee’s disability. Ideally all witnesses would read the whole bundle, but if that is not practicable then they should be directed to the key documents, as well as the key documents which involve them, so that they have an opportunity to read these before they are cross-examined.
7. Damage limitation
If settlement discussions have broken down, and the claim ends up in Tribunal, consider engaging some PR consultants to help deal with any adverse publicity should you lose at Tribunal. It is also sensible to have considered a PR strategy if the case is likely to attract publicity at an early stage (i.e. before the decision is made) so that the Company can have its comment ready and approved by the relevant people, before turning up at the Tribunal door.
8. Consider a “lessons for the future” approach
Win or lose at Tribunal, it is very likely that there will be lessons which can be learned by the Company going forward. Whether this is something as simple as the fact that the managers need to have more equal opportunities training, or whether more fundamental concerns are uncovered, for example in relation to the Company’s handling of its grievance procedures, it is sensible at the end of any Tribunal claim to consider what could be done differently (or better) next time.