“Hounded from her job after a string of racist remarks … stress of it led to a miscarriage?” “Uber’s sexual harassment case shines a light on a start ups culture of defiance”
By Richard Woodman, Royds Withy King
Headlines like these are the stuff of nightmares for corporate Boards and the last thing CEOs want to spend their time explaining to concerned shareholders. However, even in the best run organisations, claims with the potential to generate this type of publicity can be an occupational hazard.
When confronted with such claims companies will devote significant time and resources to establishing their legal position and ensuring an effective legal strategy. But all this good work could be undermined by negative press coverage which is likely to focus on the sensational elements while relegating a successful outcome to a footnote, if mentioning it at all. The damage is done in the court of public opinion even if the case is successfully defended in a court of law.
It is therefore important that corporate PR advisers are able to provide confident communications advice to enable the client to manage potentially adverse publicity from significant employment claims.
Claims which typically generate the biggest headlines involve whistleblowing and discrimination, particularly disability, sex and race discrimination. These claims are determined by an Employment Tribunal and there are a number of provisions which regulate what information can be made public.
To understand how best to protect the client the starting point is to be aware of the ‘life cycle’ stages of a typical Employment Tribunal claim:
- Preliminary correspondence between the claimant and the client, often involving lawyers;
- Notification to ACAS to commence its Early Conciliation process. ACAS is required, over a period of between two and four weeks to see if it can broker a deal, and no claim can start until ACAS certifies that its role is over;
- Commencement of Employment Tribunal proceedings;
- Employment Tribunal Hearing, typically six to nine months after the process is commenced.
There are no specific rules that govern what can be said at stages 1 and 2, unless the employee has not yet been dismissed. If that’s the case, then the business will have tight control over what the employee can say publicly by virtue of the employment contract.
If the employee has been sacked, then the PR team needs to be aware that media outlets could be courted at an early point to try and give added leverage to the pre-claim negotiating position.
Once an ET claim is commenced there are, however, some important rules to be aware of.
The formal claim documents and witness statements are, since 2009, no longer publicly available. What is more, interim hearings which take place as part of case management are not open to the public. So, if the legal team identifies an opportunity to put tactical pressure on the claimant by perhaps seeking to strike out some or all of the most damaging allegations, then this application will be heard in private.
There are, however, no rules to prevent the claimant simply giving the case materials to a sympathetic journalist, but there is strong guidance from the President of the Employment Tribunals that the materials should not be used for any purpose than the hearing itself. This guidance could be enforced by a specific Tribunal order in a particular case if there is concern that a claimant might ignore it.
The first information to be published is when the case is listed for a hearing. There is no hard and fast rule as to how long this will be from the start of the claim, but between six and nine months is a reasonable average. At this point the Court Service website will give details of the parties, their location, and the hearing date – but no claim details.
The general principle of open justice means that a final hearing will take place in public, which means that the media is permitted to attend and can see copies of the claim documents.
The ET does have the power in exceptional circumstances to restrict what can be published about the parties to a claim and the case itself in the interests of justice. A typical use of this power would be in circumstances involving allegations of serious sexual misconduct. However, it is a power which will be sparingly used and clear legal advice needs to be obtained if the PR strategy could necessitate obtaining such an order.
Corporate PR advisers and a company’s lawyers will increasingly work hand-in-hand when facing potentially damaging employment tribunal claims. It is important that both understand the demands and pressures faced to coordinate the best possible strategy.
Richard Woodman is a partner at the law firm Royds Withy King specialising in advising companies facing complex employment tribunal claims. RWK works alongside PR firms and corporate PR advisers. Richard can be reached by email firstname.lastname@example.org.
Image courtesy of flickr user (Mick Baker)rooster