Employment and High Court Litigation

Dealing with difficult Employees

Employers sometimes find themselves being drawn into a work-related dispute where they immediately sense that the problem is destined for an Employment Tribunal.

When tackling a dysfunctional employee it is tempting to simply adopt an entrenched position, perhaps being resigned to just following due process in the hope the individual will eventually resign.

A different approach may be more beneficial however. Can the issue be resolved informally and, if so, who’s the best person to deal with it? Alternatively, if the working relationship has irretrievably broken down, is it possible to start severance discussions by instigating a “protected conversation” with the individual, a statutory procedure which allows “without prejudice” discussions in certain situations?

If, on the other hand, employers want to play ‘hard ball’, then how best to tackle the individual needs careful thought knowing that, whatever decisions are made, they may be subsequently scrutinised by an Employment Tribunal.

Tribunal and Court Proceedings

If ACAS conciliation is not successful and an Employment Tribunal claim is issued, then pleading a good defence is crucial. Employment law claims cover a variety of different statutory provisions each with their own nuances. For example, missing a limitation point, not spotting a jurisdictional issue, or failing to plead contributory fault can be important omissions.

Employment Tribunal claims can be a confusing mix of overlapping allegations. It is common to see a number of different claims (e.g. sex, disability, whistle-blowing and unfair dismissal) all forming part of the same claim. Each allegation, therefore, needs to be considered and dealt with on its merits.

Establishing the prospects of successfully defending an Employment Tribunal claim at an early stage is important. Is defending a claim going to be so commercially futile that a settlement needs to be explored quickly or, by the same token, is it sufficiently weak that a strike-out should be considered? There is also the prospect of apply for a deposit order, or having made a well judged without prejudice offer, putting the claimant on notice about the risk of adverse costs if they continue with their claim?

Employment Tribunals operate with some degree of formality following their own statutory rules and procedures. So whilst parties can represent themselves, the prospects of doing so can be daunting.  It is therefore helpful to understand Employment Tribunals’ idiosyncrasies as a lack of familiarity can affect one’s overall confidence and presentation.

Employment litigation in the High Court arises from wrongful dismissal, restrictive covenant disputes (e.g. springboard injunctions), breaches of confidentiality and bonus claims. Inevitably with these types of disputes they are both expensive and extremely fast moving creating a huge amount of pressure to preserve a lot of evidence within a short time frame. Specialist help is therefore a prerequisite.

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