Nightmare new employee – what can employer’s do to protect themselves?
JCHR’s outsource HR team (myHRdept) have been managing ‘difficult’ cases for employers for more than 24 years, and we’ve seen some absolute stinkers over that time!
The very worst cases have tended to involve new employees, who have turned out to be serial litigators on the one hand, or simply unfit for employment on the other – sometimes a highly toxic combination of both.
Serial litigants will use the law to bypass the 2 years required to bring an ordinary claim
One client, taken to a tribunal by an employee with less than 3 months’ service (and who never actually attended the client’s workplace) has a tribunal bundle exceeding 1200 pages. The time to defend the claim (which the employer is admirably committed to doing) will require hundreds of hours and significant legal costs, estimated to be in excess of £50K.
Another client, whose employee had less than a single weeks’ service, received tribunal complaints against the company, and separately against 3 of their managers (individually-named claims brought personally against them), and another claim against one of the HR advisers (not even employed by the client. The same employee also made harassment complaints to the police, leading to managers and our adviser being formally investigated.
Employee threatens to run over managers
The legal press raised another case recently, where the High Court had to intervene to grant an injunction against an employee who was dismissed within his probation period, and then submitted his former employer to a barrage of emails and WhatsApp messages threatening, amongst other things, to bring the Company down; “hound (the business) like a rabid dog”; “completely destroy” certain employees and even to run people over in his car, something he claimed to have previously done.
Serial litigants cause cost, anxiety, time and lost productivity while employers grapple with multiple grievances and data access requests
We cannot overstate the anxiety that the ‘nightmare employee’ scenario can cause employers. These cases also consume a huge amount of money, time and emotional energy. It goes without saying, that dealing with them is completely unproductive time, and worst still they deflects owners and managers from their work, damaging an organisation’s profitability. As ever smaller employers are the most vulnerable and least able to fight their corner on their own.
Little wonder then why so many employers will grit their teeth and settle a claim, sometimes for considerable sums. But while the problem goes away for the employer concerned, serial litigants will simply move on to the next victim.
Some claimants are of course genuinely ill, but others are attuned to finding, and exploiting, an employer’s weak spot, and most small employers (and some larger ones) will have these.
Spotting potential ‘nightmare new employees’ can be difficult, particularly as serial litigants are by definition clever, devious and manipulative, and they usually have very little tell-tale history to spot.
Serial litigants know the pain they can cause employers. They achieve this by submitting lengthy grievances, Data Subject Access Requests, sick notes & by making ‘protected disclosures’. By doing these things they are banking that employers will give up and settle – and because employers often do, there’s usually little evidence of previous litigations to warn new would-be employers.
Spotting serial litigants at interview stage can save a lot of grief later
That said, there are things employers can do to prevent a serial litigant gaining access, and in a moment we’ll cover our top tips for spotting them. Nearly all of our tips relate to pre-employment checks, as once the serial litigant has entered their probation period, it will be too late to prevent the inevitable.
Top pre-employment tips for avoiding the nightmare employee
- Watch out for job hoppers, characterised by short periods of employment – some employees may have an explanation e.g. if they’ve worked via an agency, in which case, include the agency as a required referee
- Have an objective interview selection process, asking the same job-related questions of all candidates (particularly important at the first interview stage, as serial litigants won’t necessarily wait for a job offer to start their claim)
- Do a DBS & job history check before they start work, and make offers conditional on a clear DBS check and satisfactory job references (myHRdept can undertake these for you & prepare the offer letter and contract)
- Make sure you always offer new employment on a probationary basis & diarise key probation dates (myHRdept can manage probation processes for you)
- TOP TIP – Ask the shortlisted candidate to set up a call with their previous boss (and used LinkedIn to verify that the nominated person actually was their boss) and take the time to make that call (again myHRdept can carry our pre-employment references). If all is well this invaluable conversation can be a development discussion ready for new employee, but it could just be your best opportunity to avoid a serial litigant!
- Search for the candidates name on the employment tribunal website: https://www.gov.uk/employment-tribunal-decisions – the fact that a candidate has a previous claim is not necessarily a cause for alarm – there are bad employers too, but it’s worth reading judgements to spot the possibility that you might be about to recruit a problem (but remember that many litigants won’t have an ET record – many employers give up a costly defence to settle claims).
What if the serial litigant has already started employment?
If the employee has already started, and employers begin to suspect they are being lined up for a claim (grievances, sick notes, refusal to attend meetings etc.), it is vitally important to take good quality HR advice to avoid the possibility of actions that might add fuel to the litigant’s chances of a successful claim. It may still be possible to safely dismiss the individual, but great care will be needed to avoid processes and statements that might increase the chances of litigation against the employer.
Potential claims would usually involve an allegation that the employee has been discriminated against either on one of the 9 protected characteristics, or for making a protected disclosure or raising health and safety concerns – all of these things are commonly employed tactics used by litigants to get around the current 2 years needed to bring an unfair dismissal claim (which Labour has stated it will remove in any case, though the timing as yet is unclear).
Remember, 99%+ of employees are not serial litigants!
The cases we’ve mentioned have arisen in our 24 years of providing outsourced HR services to employers, and while we could have mentioned many more cases (most disposed of by our excellent case management team), we should say that they are very much in the minority. Over the years we have supported hundreds of employers with hundreds of thousands of decent, honest and hard-working employees between them!
HR support from JCHR & myHRdept
If you receive an Employment Tribunal claim, or you think you might, it would be wise to contact JCHR’s employment team as soon as possible. After 24 years of providing outsourced HR services, we think we’ve seen every trick in the book and can give the support and advice necessary to stop serial litigants in their tracks.
If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact JCHR? Call us on 01635 553 299, email us at info@jCHR.uk, or contact us via our website and we’ll call you back.
