Employers must be beware of the risks in discrimination claims
When an employee wins a case against their employers it can trigger further claims - especially in cases of discrimination, warns Gagandeep Prasad
How should employers deal with difficult employees who bring multiple claims (usually discrimination) while remaining in the workplace without ending up in lengthy and messy tribunal proceedings?
The problem can be particularly difficult to handle where an employee has brought a successful claim which triggers a host of further claims.
An example of this is Nadia Eweida, who, after the recent success of her claim for religious discrimination in the European Court of Human Rights, has reportedly brought a disability discrimination claim against British Airways, alleging that BA failed to make reasonable adjustments to cater for her back disorder, and discriminated against her by failing to include her in the rota during the Olympics.
While having no knowledge as to whether Ms Eweida's claims are valid or not, this does raise the issue as to how employers manage employees in these circumstances.
rom both a legal and a human resources point of view, the continued presence of an employee following contentious litigation can be difficult to manage, and it is important that the employer takes action to minimise any risks of further litigation.
The Law Where an employee has brought a claim of discrimination they will also specifically be protected from victimisation (ie,. being subjected to any detriment, as a result of having brought the claim). What is important for employers to remember is that it does not matter whether the original claim was successful for the employee to be protected.
It is also important to ensure that trust and confidence is re-established and maintained. If the working relationship breaks down following a claim, it will be difficult for the employee to continue in employment. The employer will be at risk of an unfair dismissal claim if the employee subsequently resigns.
Although there is technically no limit on the number of discrimination or victimisation claims an employee can make, there are safeguards for employers who can apply for the claim to be struck out and for costs to be repaid where vexatious claims are made.
Expert Advice Managing the working relationship following a discrimination claim, whether or not that claim was successful, is always going to be difficult as it is likely to have involved allegations made against the employee's work colleagues and managers, who may also have given evidence at the tribunal. If the claim was successful, the employer should consider whether it should take any action, such as disciplinary proceedings, against anyone who is found to have discriminated, or whether equal opportunities training or re-training is needed.
The employer should also consider whether any policies need to be amended or reviewed.
Finally, it should address how to defuse any tension which has arisen as a result of the contentious nature of tribunal proceedings.
If the employee is making numerous and apparently unfounded allegations or refusing to follow management instructions, the employer can consider invoking its disciplinary procedure.
To Do Checklist
â- Consider whether the disciplinary procedure is appropriate in respect of any employee who has been found to have discriminated.
â- Talk to the employee about their expectations and concerns following the litigation. Also talk to the other employees involved in the litigation to ensure their concerns are heard.
â- Consider whether there should be any movements within teams/departments but proceed with caution and ensure full consultation to minimise the risk of a victimisation claim.
â- If the situation is particularly difficult or sensitive consider outside help, for example, using a third party such as ACAS.
Beware! â- Do not ignore the situation - address it with the aim of minimising potential issues and ensure that the air is cleared.
â- If the employee makes further allegations, ensure these are investigated promptly in the same way as would be done if they had made no previous complaint, to ensure that they have no grounds for bringing a victimisation claim. Ensure that this is done by someone not involved in the original complaint.
â- Only consider disciplinary action against the employee for making unfounded allegations if the employer has strong grounds for doing so. It is sensible to take legal advice on this.
Contact Gagandeep Prasad is a senior associate at Charles Russell LLP