Ascertaining the claims record of a particular employer and obtaining copies of any judgments requires quite a lot of effort at the moment. But a searchable online database of employment tribunal decisions will become available to the public from autumn 2016, according to the government’s courts and tribunals service, and making decisions more easily available can only heighten an employer’s risk of adverse publicity arising from employment tribunal proceedings.
The fear of a damaging story finding its way into the press can be a significant influence on an employer’s approach to the prospect of being sued in an employment tribunal. Clearly any proceedings involving a high-profile employee, whether as a claimant or as a result of being accused of wrongdoing, is likely to attract media attention, especially if any salacious details are involved (however loosely connected with the legal issues in the case), or there are allegations of discriminatory treatment, harassment or bullying. Even if a claim does not generate national press coverage, it might warrant an article in a trade publication if the employer is well known.
Of course, many claims are lost or won without ever being reported in the press, but adverse publicity can still result. Disgruntled claimants might choose to circulate a damaging judgment among existing staff, possibly encouraging others to pursue their own grievances against the employer.
When faced with a claim that apparently has no basis, it can be tempting for organisations to proclaim that settlement is out of the question, thereby setting the parties on a collision course for a public showdown. On the other hand, an organisation on the receiving end of negative publicity as a result of a workplace dispute might be inclined towards a quick settlement when threatened with legal proceedings, whatever the circumstances. But acting on a knee-jerk reaction, whether to settle or fight a claim, is risky and might have unforeseen consequences.
If things go badly wrong for the employer at the tribunal, the consequences could be lost clients or badly damaged staff morale. In some cases, a senior employee who has been found guilty of wrongdoing or judged to have lied on oath might be forced to resign. Having a ‘watertight’ defence does not provide immunity from negative press coverage. It is not unusual for the allegations made at a hearing to be reported more widely than the resulting judgment, which might not be published until months after the hearing has concluded.
In many cases, employers should consider settling as an option. If a deal can be done before a hearing, there will be little or no information about the dispute in the public domain. It is not generally in claimants’ interest to publicise their case before a tribunal reaches a decision. Settling gives an employer the opportunity to impose obligations of confidentially that can encompass not only the terms of the settlement but also the allegations made and the circumstances surrounding the dispute. In addition, the claimant can be asked to agree not to make derogatory or damaging statements about the employer and its staff.
However, settling can have adverse consequences. Confidentiality obligations may not be kept and there is a risk that claims without merit will be encouraged if a business is too quick to settle. In some cases a settlement might be viewed as an attempt to gag the claimant from repeating legitimate concerns. If the claim involves a dismissal for misconduct or poor performance, offering a settlement could be interpreted as condoning wrongdoing or a reward for failure.
When proceedings are threatened it is obviously important to consider the legal merits of the claim and what cost and effort might be involved in defending it. However, employers should also consider what adverse publicity could result from a public hearing or a critical judgment, and how a settlement might be viewed by third parties. Employers will be best placed to formulate a strategy when all of these factors are weighed into the mix.
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