The sixty-four-thousand-dollar question: How does an employer uphold a complaint of bullying or discrimination without risking further exposure to a related Employment Tribunal claim?
As is invariably the case in respect of grievances that include complaints of bullying, harassment and discrimination, the employer is caught between the devil and the deep blue sea in this regard.
Should it try desperately not to make any admissions for fear of providing further evidence in support of the employee’s allegations and thereby facilitating a future claim, or should it not even try to defend the indefensible, make concessions and take remedial action?
First and foremost, it is important to realise that where an employer commits a repudiatory breach of an employee’s contract, it cannot repair that breach by putting its hands up, saying sorry and taking steps to put things right. But that is not to say that doing so will not serve to defeat a related claim in some circumstances.
The determining factor will be whether the acts complained of amounted to a fundamental breach of contract. As the principle of raising a grievance is to resolve a workplace concern before it escalates to the point of being irreparable, if it is resolved then it will not constitute the repudiatory breach necessary for a successful constructive dismissal claim.
The key to deciding the approach to adopt to grievances such as these is therefore assessing the seriousness of the conduct complained of.
That is not to say that where an employer is of the view that the conduct does amount to a fundamental breach, the employee will have it all their own way if they submit a claim regardless of the employer falling on its sword to that effect. Tribunals rarely criticise employers for not trying to defend the indefensible and this will likely be reflected in the size of any eventual award. Furthermore, it may serve to appease the employee to the point that the likelihood of them claiming in the first place is reduced.
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you are an employer facing a grievance that you fear could eventually lead to litigation, please feel free to contact us for a confidential, no-obligation discussion.