Three questions to assess legal risk

It’s common as HR professionals to spend a lot of time talking about best practice, and trying to be proactive, and generally do good ‘stuff’. That’s great, but there’s the harder-nosed, less fluffy side of HR, which involves having to assess the extent to which your client or employer is at risk of a legal claim, and advise on a way forward in that context.

Sometimes it’s through no fault of anyone’s (I always say you can’t legislate for bonkers, which is a rather un-PC way of saying sometimes you get people who will put a claim in no matter how spurious or unjustified), sometimes a manager has gone off-piste or not sought advice early enough, sometimes it’s the actions of another employee that the organisation might end up liable for.

But regardless of the reason, it’s a simple fact that part of your job is being able to assess legal risk as accurately as possible. But lots of people don’t do this – they panic a little, think something ‘feels’ risky, but have no idea how to actually work out what the risk is and what to do about it. As an HR professional, when assessing (and advising on) the legal risk involved in a certain course of action, you should be asking yourself three separate questions- something many don’t do. There’s a lot of licking a finger and sticking it up in the air, but actually a calm, structured approach is much more beneficial.

1. What potential claims could this person bring in this scenario?

Something might feel terribly wrong, and HR people therefore think something is risky. But there’s a bit difference between being or feeling ‘wrong’ morally, or from a best practice point of view, and actually being unlawful. So in the scenario, consider what possible claims the individual might be able to bring, in the situation as it is or if the manager proceeds with what they’re saying they want to do.

2. What is the strength of those claims – how likely would any of them be to succeed in a tribunal situation?

Once you’ve identified what the potential claims might be, you can then consider the strength of them. What actual evidence is there? What kinds of things would a tribunal look for when assessing the claim/s in question? How robust is the employer’s position? Are there any qualifying criteria to bring the claim/s that the employee doesn’t meet? How much might the claim cost, both if won and if lost (due to management costs and legal fees).

3. What is the likelihood that this particular individual will bring any/all of the claims?

Question 3 is often forgotten but it’s crucial. Some employees are likely to bring a claim regardless of it being incredibly weak and unlikely to succeed, and some employees are the opposite- they might have a reasonably strong claim but for whatever reason, either due to historical factors or due to how they are behaving during the current situation, they don’t seem likely to bring the claim.

However strong your organisation’s position is, however vanishingly unlikely it is that any claim would stick, there’s still a giant hassle and expense factor involved in defending a claim. And some employees will take a claim all the way, regardless of the chances of success, particularly if they don’t have decent quality advice. If they are using very threatening ‘legal’ language, have a history of raising lots of formal grievances, are giving robust responses in correspondence, have taken advice from someone reputable, and perhaps don’t have another job, they might be more likely to be considering a claim. On the other hand, if they are asking for a settlement very early on, perhaps have a new job already, or you are aware they were going to resign, these might all be factors indicating someone doesn’t have much appetite for a claim.

So when advising on the risks of a course of action a manager wants to take, don’t just assess whether the actions are lawful or not. Instead, assess whether an argument could be made that they are not, and assess whether the individual concerned might be inclined to make that argument. (Knowledge of the individual concerned and the past context is vital here).

Once you’ve assessed exactly what claims might be in scope, how strong those are, and how likely the individual is to bring a claim, you can then advise on a course of action designed to reduce the risk of a claim being brought in the first place, as well as designed to reduce the risk of a claim being lost.

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