It has now been just over a year since the Supreme Court abolished employment tribunal fees. Since that decision, through discussions with our clients, we have noticed an increase in the number of employees raising complaints or threatening to bring employment tribunal claims against their employer. These often have no legal basis but are undertaken with a view to making life difficult for their employer or seeking some level of compensation.
Such complaints are often highly disruptive to businesses and involve significant management and financial costs.
What can employers do when faced with a potentially litigious employee?
- Informal conversations can sometimes go a long way – Quite often, matters can be resolved through an honest and tactful conversation with the employee before things go too far or become too formal. Such a conversation might involve asking the employee what their desired outcome is, to ascertain whether it could be accommodated. This could resolve the dispute with minimal disruption to the business. However, this approach may not always be appropriate depending on the nature of the individual involved or the complaint alleged.
- Where appropriate, direct the employee towards the grievance procedure – Informal discussions may not be the best approach in all scenarios. In such cases, it would be advisable to direct the employee to start the formal grievance procedure. Whilst investigating the grievance will involve management time, should the complaint ultimately end up in an employment tribunal, the business would be able to show that it followed the correct procedures to try to resolve the employee’s concerns (provided those procedures are carried out correctly!).
- Show that you take allegations seriously – Whilst an employee may initially appear difficult or vexatious by raising their complaints, this may not always be the case. It is still important to show that you are taking the allegations seriously by conducting a proper investigation in accordance with the relevant procedures. This will allow you to make an informed decision as to whether the complaint is vexatious or genuine.
- Do not allow the employee to rehash old grievances – Where the employee has exhausted the internal grievance procedure (including appeal) but seeks to raise another complaint essentially on the same matter, refer the employee to the original grievance decision and make it clear that the business will not enter into any further correspondence or discussion on the matter.
- Try to be consistent – We often see disruptive employees contacting different people with the same concerns in the hope of getting a different response. In such cases, training would be helpful to make employees aware of who to raise such complaints with (for instance HR) to ensure that there is a consistent approach within the organisation.
- Settlement Agreements – Where a package is offered to an employee in order to settle any complaints, consider using a settlement agreement (even if there is no termination of the employee’s employment). Failure to do this means an employee could still bring a claim in the employment tribunal. However, for such an agreement to be valid, an individual needs independent legal advice which could result in the employee asking for more in compensation following the advice they receive.
We appreciate that there is not a one size fits all answer in such cases. What the best approach is comes down to judgement and should be assessed taking into account the individual in question, the complaints alleged and the potential risks to the business.
Our next blog will focus on how employers can deal with litigious/vexatious former employees who seek to try and bring claims following termination of their employment.
If you require assistance in such matters, please contact a member of the employment team.