Tue, 28 Apr 2015
It is no secret at the Employment Bar that there is less Employment Tribunal advocacy work around now than there used to be. Moreover, this trend is across the board affecting both the junior and senior end of the Employment Bar. Some sets of Chambers won’t be drawn on the point – at No5 Chambers we would rather tell you about what other interesting work we are tapping into and have been involved in.
One area of work which is developing fast is investigation work - so I thought I would use this blog to tell you something about the nature of this work, the circumstances in which our clients are calling for it and some of the results we have been seeing.
In the last 6 months I have been briefed to investigate:
- Multiple grievances from secretaries in a firm of solicitors alleging harassment against each other. The secretaries had all fallen out and were making the fee earners lives difficult.
- The state of staff relations in a private household, following a significant period of change (Think ‘Downton Abbey’).
- The fall out from a restructuring exercise in a social care setting where the Consultant employed to implement change complained at the end of her appointment that the organisation was institutionally racist.
- A serious complaint of sexual harassment against a Director of a city firm.
All of the above were internal matters and very much pre-litigation.
In the matter relating to the secretaries – the partners felt too close to deal with the matter themselves. In the matter relating to the private household staff – the relevant Board of trustees had determined that someone independent of its own HR function and management should be called upon to investigate. In the other two cases the complexity and sensitivity of the issues were the driving factor behind the decision to use counsel.
What makes barristers so suited to this type of work I hear you ask. Is it the ability to question witnesses and get people to say things they might not otherwise say? The battle hardened experience of considering competing witness testimony and deciding who is telling the truth? Or is it the skill of managing significant amounts of evidence across complex issues?
It may be all the above but one unique advantage to using a barrister to undertake this type of work is that any report produced may (depending on the way in which the instructions are affected) be covered by legal privilege. This gives the organisation or body commissioning the investigation considerable leeway in deciding whether the report (and therefore the findings reached as part of the investigation) should be published or not to the relevant parties. This is not a feature that will apply where other types of investigator are used.
It is difficult to go into too much detail given the requirement of client confidentiality but in relation to the above-mentioned matters I am able to say:
- The report into the state of staff relations is being used as the rationale for a mediation exercise; to identify training needs of one or more members of staff; to answer grievances by several individuals and provide the basis for disciplinary action against one individual.
- The report in the social care setting was used to answer the individual’s grievance, identify unhelpful patterns of behaviour and cultural norms by some staff and identify failings at senior management level.
- The report in relation to sexual harassment resulted in the individual withdrawing her grievance and leaving the Firm.
A colleague has experience of her investigatory report being served by the employer on the employee with an accompanying costs warning against commencing proceedings in the Tribunal in relation to matters that were deemed not proven as part of the investigation.
Spencer Johnson’s renowned allegory ‘Who moved my Cheese?’ makes useful reading at this time for anyone who has hitherto relied on Tribunal advocacy as their bread and butter. As the allegory makes clear there will always be another source of food (work) – it just may be in a different place to where it was before.
The increased willingness of employer clients to direct legal resources to a problem at an early stage may or may not be linked to the decrease in Tribunal claims. It is certainly consistent with current government policy towards employment disputes, ADR practises and businesses general dislike of the uncertainties of tribunal litigation. Spending money on an independent investigation by specialist counsel may avoid the need for employment litigation by several routes.
Written by Richard Hignett