After the claim – what employers should know

Litigation between an employer and their employee may formally end with a judgment or settlement, but its impact can linger long after. Employers are left with the task of appropriately managing the working relationship going forward.

Whether you are welcoming a former claimant back into the workplace, responding to a reference request, or continuing a working relationship post-litigation, you must tread carefully. Even though the claim has been resolved, the potential for perceived retaliation or unfair treatment remains a very real risk. Employers must strike a balance between maintaining operational standards and ensuring that the individual is treated fairly and lawfully.

Following the contentious process of legal proceedings, the employment relationship can be fraught. Employees will often be on high alert to behaviour which they might feel is detrimental or in punishment for having brought a claim, and they can be uncomfortable at the prospect of returning to “normal” working dynamics.

Employees who have previously brought certain claims, such as discrimination complaints, are protected from being subjected to a detriment because of prior litigation. Employers must also avoid acting in a way which might be seen to be calculated or likely to destroy the mutual trust and confidence between them and their employees. Managing the shift in relationship from being adversaries to just being colleagues again can be challenging and failing to do it appropriately can risk reigniting the conflict. This can be costly for an employer to defend.

Whilst costs vary depending on the complexity of the claim, the level of damages sought and whether the case settles early or proceeds to a full hearing, in many cases end up being tens of thousands of pounds to defend. On top of the costs of the original litigation, the cost soon racks up. Additionally, there is a risk that the employer’s reputation can be affected, both externally and within your own workforce. Collating relevant documentation, conferring with legal advisors and attending a hearing can be timely and cause operational disruption – the experience can also severely impact staff morale.

What can employers do?

1. Understand the nature of the previous litigation

Employers and colleagues involved should internally recognise that there has been prior litigation with the individual, but don’t let it solely define your approach going forward. History may influence dynamics, but it must not negatively affect the current working relationship. This means that the individual should be treated as any other team member, unless specific legal or operational requirements dictate otherwise (for example, actions relevant to compliance with recommendations or orders of the Tribunal, reintegration into work, safety concerns, or conduct issues).

Importantly, review any settlement agreements or tribunal orders carefully. Make sure you understand and honour any terms, including confidentiality, reference wording, or reinstatement clauses.

2. Ensure fair treatment

Employers must make sure all actions comply with relevant legislation and that a consistent standard of work and behaviour is applied to individuals. Avoid micro-management or special treatment. Special treatment, whether favourable or unfavourable, can inadvertently lead to resentment or further disputes.

Do not disclose details of the past case to colleagues unless there is a lawful and necessary reason. If colleagues are aware of the prior litigation, reinforce a culture of professionalism and respect. Gossip, speculation and bias must not be tolerated.

3. Maintain clear and accurate records

Decision making should be well-documented. Keep a written record of decisions and any interactions that fall outside usual practice, particularly where they relate to performance concerns, complaints, or refusal of requests.

This can be invaluable if any future allegations arise, providing a clear rationale for decisions and helping to demonstrate that the employee has been treated fairly and in line with policy. It also forces decision makers to carefully consider the choice they are making and whether it is justifiable. This can help to tackle unconscious bias.

4. Train members of staff

Employers should consider enrolling senior employees in managerial courses to enhance their skills in handling challenging situations and dynamics in their teams confidently and appropriately. Focus on practical skills such as handling difficult conversations, managing unconscious bias, and maintaining professionalism under pressure. Employers cannot reasonably expect managers to be able to deal with these difficult circumstances without adequate training and support.

Training can be delivered in-house if you have the right expertise in your business or via external HR or legal advisers. This is an excellent preventative tool, especially in organisations that have experienced previous employment litigation.

5. Engage in supportive and constructive conversations

Employers should proactively check-in with the employee post-litigation. These conversations should be framed around support and mutual expectations, not rehashing the past. In the initial stages, managers should schedule regular meetings with the individual to monitor progress and address any emerging concerns promptly. It is recommended to implement feedback mechanisms (such as anonymous surveys or HR drop-in sessions) to ensure continuous improvement and to maintain a harmonious work environment.

6. Have an escalation plan

If interactions with the individual become difficult, seek support from an employment solicitor or HR professionals early so they can advise you as you navigate the issues.

External HR providers, such as HR Plus, provide qualified and experienced HR professionals to offer guidance and advice to managers on the entire employee lifecycle. HR Plus can also support or conduct more formal processes such as Disciplinary and Grievance procedures. Often, employees feel more comfortable using an external provider as they see them as more impartial and confidential.

Employees should be open to the option of external mediation. Mediation is a useful tool to resolve interpersonal issues in the workplace and is something that may be beneficial following a previous litigation, depending on the specifics. Mediation allows an open confidential forum for parties to air their concerns and work towards a practical solution.

Key takeaway

Managing the employment relationship with someone who has previously taken legal action against your organisation is rarely straightforward. Emotions may still run high, trust may need to be rebuilt, and colleagues may feel unsure about how to interact with the individual.

It is essential for employers’ actions to be grounded in fairness. Every decision should be taken in line with clear, consistent policies and communicated transparently. Taking a proactive approach, including training for managers, encouraging open dialogue, and keeping thorough documentation, can go a long way toward reducing risk and rebuilding a professional, respectful relationship. It is important to have a mindset that looks beyond the past; the focus should not be on the litigation itself, but on the future working relationship and what both parties can do to positively contribute to that.

How we can help

If you’re dealing with a complex employee relations issue or want to ensure your HR practices are appropriate, our team of employment law specialists is here to help. Get in touch here for practical, strategic advice tailored to your business, or contact Elspeth.Drysdale@andersonstrathern.co.uk if you have any questions on this topic.