As we have explored in our previous blogs in this series, where there is a shared basis for a claim on the facts, employees or workers may group together to bring group workforce claims. This risk has been heightened by the pandemic, where companies and employers have been required to take significant and often business-critical decisions under fierce time pressure, resulting in greater legal risk than might ordinarily be contemplated.
In order to manage these risks and plan for how they might be best addressed, businesses would be wise to develop a high-level litigation strategy document. This would highlight the key areas of legal risk, and outline methods to manage and mitigate such risks. Below are some of the key elements which we would suggest are included in a litigation strategy:
- Identify the key areas of legal risk – likely areas will include the return to work (e.g. health and safety); selection for furlough or redundancy; changes to terms and conditions; workforce data protection claims; and equal pay (in particular following the ASDA decision – please see our blog here. Other risks may be more or less prevalent depending on the sector in which the business operates.
- Identify key methods of mitigation – companies may find it helpful to design a protocol or process for decision making and implementation. This might include the following elements:
- Clearly and contemporaneously documenting the reasons why decisions have been taken. For example, this would include risk assessments in relation to return to work decisions, records of communications with employees (and between senior managers) over furlough / redundancy decisions, board minutes, decision trees etc.
- Communicating clearly and openly with the workforce, and ensuring that staff are aware of key channels for raising any concerns, whether this is via their line manager, an employee forum, or through the use of an existing whistleblowing hotline. Staff are likely to be much more receptive to accepting difficult decisions in exceptional circumstances where communication is clear, transparent and proactive.
- Address concerns quickly and transparently, and keep staff updated on key developments.
- Calculate the potential quantum of claims – this will help to focus minds within the business and help to evaluate what steps should be taken to mitigate a particular risk area.
- Consider the reputational impact of claims – consider whether some claims will be more sensitive than others, and how this might affect the litigation strategy. This may depend on the sector of the relevant company – some sectors may be under greater scrutiny from the press and/or investors.
- Assess additional factors which could impact claims – for example, is there a trade union involved, or does the workforce have a history of bringing claims?
- Develop a strategy for defending and settling claims – it is important to think about which claims it makes sense to defend and which it may be better to settle. Relevant factors will include the prospects of defending the relevant claim (including the evidence at the company’s disposal); the expected costs (both in terms of compensation and legal fees); expected press / investor interest; and whether settling claims might embolden other claimants.
- Develop an effective strategy for tracking group claims – there will often be a number of similar but distinct claims, so it is important to have a clear and effective method of tracking them and keeping abreast of developments and key dates.
- Involve experts – aside from the obvious involvement of internal and external lawyers, consider engaging internal and externals communications teams, ER specialists, line managers and senior management.