Employment tribunals – managing the collateral damage

David Merlin-Jones

In this blog, the third in a series regarding regulatory investigations and employment challenges, we discuss the need to manage the wider impact of an employment case that has gone all the way to a tribunal hearing and grabble with the consequences of these proceedings being open to the public.

Employment tribunals can be a source of drama that rivals the best soap operas. It is no surprise that the press routinely scour the listings to see which cases are likely to cause sensation and turn up in droves to witness the action. Managing the fallout of what is said (and not said) by those called to give evidence can be a tricky issue for employers. A thorough review of the claimant’s witness statement(s) can only prepare you so far – what is actually said on the day is a different matter.

If you think that a case is likely to draw media attention, it is always worth planning your press strategy in advance and ensuring all stakeholders are on board with the message. Engaging your media relations team is essential, and they can consider whether to attend the tribunal and engage with reporters face-to-face. If your firm’s reputation is on the line, planning, planning, planning should be your mantra.

A frequent issue in tribunal hearings is that innocent parties are thrown into the firing line by a claimant (or their witnesses) who identifies clients or employees, and may make allegations against them. For example, where a claimant wishes to show that he or she has been used as a scapegoat, it will be part of their strategy to show that there has been inconsistency of treatment by pointing to other individuals who have been treated differently.

If this is likely to happen, it is important to give advance warning to employees (or clients). The only thing worse than being named and quite possibly shamed, would be this coming as a surprise. Better they know it could happen, and be assured that your firm will do what it can to minimise the damage. In some circumstances, it might be possible to obtain a restricted reporting order, which prevents the press (or anyone else) publishing the names of anyone covered by the order. These orders are only given in exceptional circumstances, and application to the employment tribunal judge should be made at the start of the hearing – another reason why planning is key.

If allegations are made in the public form of employment tribunal proceedings, how should you deal with this? If the allegations come to light via witness statements exchanged before the hearing, there should be time for investigation, allowing you to present your findings to the judge and press during the hearing as you see fit. However, control of the situation will be lost if new allegations are made unexpectedly on the stand. If the seriousness or regulatory nature of these allegations warrant it, you can take back some control through speedy investigation of the issue whilst the hearing is on-going, enabling you to shape and deliver your message before the end of the case. This will also show the tribunal that your firm is pro-active and swift to react. Additionally, whenever an allegation is made and it transpires there is substance to it, investigation puts you in a position to consider how best to present the outcome (but also consider the need for any subsequent disciplinary action).

In a regulated sector such as financial services, the effect of allegations being made by claimants can be serious and lead to regulator scrutiny. In some circumstances, it might be prudent to inform the regulator of these allegations yourself – this at least allows you to retain a level of control over the message and it is far better the regulator hears about these issues from you, rather than via the news. You should also inform the regulator once any relevant investigations have been completed and what the outcome of these were. Remember, if disciplinary action has been taken against other employees, reassessment of their fitness and propriety may be necessary.

Our next blog post in this series will deal with fitness and propriety.

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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