Managing employment litigation: a guide for HR

Handling an employment claim, whether in the Employment Tribunal or the High Court, isn't just a job for the lawyers.

18 Dec 2018
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As a central point of contact, HR professionals play a crucial role in ensuring that the business achieves its desired result. Balancing the demands of litigation against day-to-day work can be very challenging, but there are some key strategies that HR professionals can use to make things run more smoothly.

1. Who? Getting the team together…

At the outset of any litigation, it is essential to identify which managers will need to be involved in the case. Who will be responsible for giving instructions to the lawyers, who will be involved in strategic decisions about the litigation and any settlement, who will need to search for/provide relevant documents for disclosure purposes and who will need to give witness evidence? By identifying all relevant parties at the outset, a lot of wasted time (and costs) can be avoided. It also means that HR can ensure that the key decision-makers are fully on board with the strategy for the case.

Once you know who the key decision-makers will be, it's important to ensure that they understand what the litigation will involve. Not only do they need to understand the key legal issues, but they need to appreciate what the litigation will involve on a practical level. Is there likely to be press interest? Will allegations be made which could affect the share price or have regulatory repercussions? Although commercially-aware legal advice will factor in these issues, it often falls to HR to ensure the messages get through.

2. What? Gathering the evidence…

Disclosure of relevant documents and preparation of witness statements are two of the most crucial (and expensive) aspects of litigation. HR often provides the central point of contact for both these aspects and can play a valuable role in streamlining the process.

Failing to disclose relevant documentation can be fatal to the business' litigation position. Often the culprit is a poorly-planned disclosure exercise. HR can reduce this risk by helping to identify who is likely to have relevant documents, ensuring that they understand what they need to do to locate relevant material, and making sure the documents are well-organised and provided to the lawyers promptly. The same goes for witness statements: HR play an invaluable role by making sure that the witnesses understand their role and are available to give instructions and review draft statements when needed, as well as reassuring reluctant witnesses about the practicalities of giving evidence.

3. Why? Taking the strategic view…

When in the thick of a hard-fought dispute, it's easy to lose sight of what the business is trying to achieve, particularly if it takes a personal turn (as employment disputes sadly often do). HR can keep the business focused on its commercial goals and help to ensure that business imperatives underpin the litigation strategy rather than letting the case take on a life of its own.

Very few people go into HR hoping to deal with bitterly-fought litigation – but with thoughtful planning and a clear strategy, managing a case effectively needn't be an all-consuming task.


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