High Profile or High Risk
In the field of Employment Law, the stakes keep getting higher and the goalposts keep moving.
Wise companies learn from the pain of others to avoid going through the pain themselves. Can they learn anything from high profile cases ?
Solicitor Michael Morse thinks they can (if they listen).
Switalski Case
On first glance, this recent case looks so different from ‘normal’ that it provides few lessons. But consider the following as you read about it:
• Are there high earners in your company?
• Could issues arise ?
• Would your company handle them better ?
• Do you appreciate the risk ?
Gill Switalski was a 51 year old mother of two. She juggled career and family by working from home one day a week. This was important as her children were disabled. She was on £140,000 a year and life was good.
Then the company went through a merger. She got a new line manager and things started to go downhill. According to her, the new line manager micromanaged and pressured her over her arrangements. He challenged and pushed her over everything she did.
She felt ‘undermined, undervalued, bullied and marginalised.’ (How many disgruntled managers share those feelings ?) She fell ill and eventually brought proceedings for discrimination and harassment. She pointed to a colleague who escaped this mistreatment - who happened to be a man.
After a long legal battle, Mrs Switalski has finally won –
• The company, line manager and Head of HR have a Judgment against them.
• Her payout may dwarf the previous record – at £13 million !
Lessons
It is easy to focus on exceptional aspects of this case. What really matters however are its ordinary issues. These are surprisingly mundane – and reappear everywhere.
First we have high earnings. £140k is clearly a very good salary but what if we reduce it by half. How many employees around the country now come into focus ?
Next we have a post-merger culture, with an aggressive line manager. To him the end justified the means. As companies count the cost of the recession, the same scenario plays itself out daily across the UK.
Finally there is some protection specific to a particular employee. In this case it was gender/motherhood. It could as easily be something else: race, age, homosexuality. Any would suffice to create a victim at law.
In truth Gill Switalski represents a large number of senior employees whose managers treat them badly. Her payout exceeds others but, in terms of risk control, that is frankly irrelevant.
Even 10% of her award would be totally devastating to any ‘normal’ company.
It’s Personal
Companies would do well to remember –
• It’s not only employees who are protected against discrimination. A partner can make the same claims.
• Individuals within the company can be liable along with the company itself. Line managers may face high value personal Judgments.
Grievance Code of Practice
Gill Switalski clearly felt aggrieved by her treatment. Until April of 2009, there were mandatory grievance rules. These caused great confusion however and have been replaced by a new ACAS Code.
At its heart is the idea that the rules were sensible but more flexibility was called for. The Code is about ‘guidance’ and ‘best practice’. Companies must harbour no illusions however. Fail to follow it and a Tribunal may well –
• Decide against you on the merits
• Adjust compensation by 25%
What are some of the changes to general grievance procedures ?
There is no longer a requirement for a grievance to be in writing. This is important. Under the old rules an unwritten complaint was not a grievance. Now it can be. Managers must be alert and receptive.
Companies are encouraged to think about how to handle bullying and harassment. Greater emphasis has been put on informal resolution. Yet a company will need to show it has given serious thought to serious issues.
Use of independent mediators is encouraged. This may avoid the costly and destructive adversarial approach of conventional litigation.
Managers may also need to be re-trained. They are at the forefront of the changes and a Switalski-type boss runs completely contrary to the entire profile of the Code. A company that fails to recognise this will get no sympathy.
The bottom line is, whether old rules or new Code, a renegade line manager can lose you the case (and a lot of money).
Conclusion
High profile cases do tell us something:
• The same principles apply to us
• The factual differences that matter are small
• The financial risks are huge
• HR Managers may exaggerate their abilities
Early legal advise is critical. Gill Switalski’s HR Manager – faced with a £13 million Judgment - might wistfully recall a wise old proverb:
The man who represents himself has a fool for a client.
