Over the years I have spoken to many shareholders, business owners and CEO’s who feel employment law is biased and loaded towards the employee. I’ve heard questions like ‘where’s my protection?’ ‘How do I sue them?’ and ‘how do I get my money back?’
It’s one of the elements that can be difficult to explain, when you are the HR Support. That’s worth repeating. The HR Support. Not the employment lawyer! A jump many HR professionals will know only too well and suddenly becomes part of their remit, when the *%~& hits the fan.
When you get the same question posed by an employee, you have a range of responses in terms of how they can defend themselves. It might be as simple as, ‘let me speak to your manager,’ through softer skills like enabling productive informal conversations, or mediation, or it might be through more formal mechanisms such as grievances, formal complaints, tribunal claims, or arbitration.
The laws are set at an exceedingly high benchmark and based on ensuring that the largest companies are held accountable and feel the pain of stepping out of line. For an SME though, this can mean the end of the business.
Unsurprisingly, in my opinion, the answer lies around ‘where the money is.’ It’s easier to sue a business owner than it is an individual. So, whether employment law ‘bias’ is real or not is interesting. The real questions are where will the pain be felt? and who will ultimately pay for it?
It was recently reported that the disgraced actor Kevin Spacey was ordered to pay $31m to House of Cards producers. This was for the ‘costs involved in removing him from the series following sexual misconduct allegations.” Kevin Spacey ordered to pay $31m to House of Cards producers – BBC News
In employment law terms, they have been able to show a clear tangible loss. Often this isn’t the case for the business. They based their tangible loss on lost profits. They could produce a number but how real was the number? Was it already a series on the wane? Could they really accurately predict their profit that well? Well in reality, yes is probably the answer.
The entertainment industry is run on metrics, numbers, data, and complex algorithms. They knew how much they had made from previous series, and they knew how much demand there was for the next series.
In addition, they were probably fairly confident that he had the money to pay them!
In another incident, the radio host, Alex Jones, ‘peddled a string of conspiracy theories’ including ‘falsehoods’ about an Elementary School shooting. The case ended with him paying $50m in compensatory and punitive damages. It was reassuring to see him held to account for this fabrication and defamation. Alex Jones: Five revealing moments from Sandy Hook trial – BBC News
There were key moments that led to the conviction, that I encourage anyone to read and understand. My favourite part being the Judge having to say, “It seems absurd to instruct you again that you must tell the truth while you testify…. This is not your show.”
Although this wasn’t about an employer taking an employee to court, the route and the outcome were aligned to how you can bring a rogue individual to justice.
Here’s how businesses can protect themselves
So my current answer to shareholders, business owners and CEO’s when they ask me ‘where’s my protection?’ is what do you measure already and how much can you rely on that measure?
If you can prove the allegations, if you can evidence a tangible loss and you have a rogue employee who can afford to pay, anything is possible. As an old HR Director used to say to me, “the answer is always yes.” “Yes, subject to… but always yes.”
The smarter route of course is to invest in preventative measures, to safeguard your business for the inevitable rogue employee, not deal with it when it happens and hope for remedial action to be successful.
That’s why policies are required; 1-2-1’s, appraisals and objectives are more than just strong recommendations and why businesses who focus on culture and designing the right solutions for making their business work, design preventative and governance-based measures that remove the risk before it happens – or in extreme cases enable remedial action that means rogue employees may be held accountable for their actions.
If you don’t want to put the hard yards into governance, properly focused and maintained employment practices and risk management methodologies, then you will run the risk of being sued for millions and have little or no recourse when the rogue employee hits you hard.
Big businesses have inhouse employment lawyers for a reason, for everyone else, find partners that can help you get it right first time and are there for you when you need that additional support. Don’t let it kill your business.
If you would like to talk to one of our experts about how to put preventative measure in place to safeguard your business now, take a look at our HR services page, or give us a call on 01491 414010.