Employment law and procedure: a critical analysis - Part 3
As well as legal duties under statutes and regulations, employers have obligations under duties imposed by the common law. These duties are essentially judge-made and consist of a mass of decided cases. With reference to work-related stress, one of the positive points about the English common law is that it is prepared to compensa te people who have been driven mad, to use a colloquial term, by workplace conditions. English judges have created a rule that mental illness caused by employers can be treated in a similar way to physical injury. Cases of, for example, bullying, harassment and exploitation at work, where a recognised psychiatric illness has resulted, can lead to victims obtaining compensation. The leading case on work-related stress is Hatton v Sutherland and Others (2002). Lady Hale’s judgment in this case extends to almost 30 pages of the report. There are no Latin words or phrases in the judgment. Lady Hale deals with a case with complex facts in a difficult area of law. The judgment examines and analyses psychiatric illness in general, defines and describes workplace stress and goes on to explain the relevant law. Anyone with an interest in work-related stress should be advised to read this judgment in its entirety. It can safely be recommended to non-lawyers: a rarity.
Before lawyers turned the employment tribunal into a quasi-court, costs were not an issue in that tribunal. The general, almost universal, rule was that the losing party in an employment tribunal matter, unlike a claim in the civil courts, was not at risk of having to pay the other side’s costs. This principle has been gradually eroded by legislation and lawyers’ practice. The current position is that large firms of solicitors, normally acting on behalf of employers, have a standard practice of issuing costs warning letters to employee claimants in the tribunal. The standard form of these letters is a statement that the claim has no merit, is unreasonable and is bound to lose. The inevitable result of such a defeat, states the costs warning letter, is that an application will be made for payment of the winner’s costs. This can be a frightening threat. Given that large firms of solicitors may charge £300 an hour for their time, costs threats of £20,000 are not unusual. For claimants who are unemployed, or perhaps disabled and have very little money, the costs warning may well succeed in dissuading them from carrying on. This, of course, defeats the whole object of employment tribunal proceedings, which at one time were an informal and low risk means of workers enforcing their rights. This ethos is rapidly disappearing. The money imperative is increasingly used by employers to prevent employment tribunals deciding claims on their merits. Justice in the employment tribunal is following the civil courts in being subordinate to the rich and powerful.
When employment tribunal claims are settled by negotiation, normally by a reasonable sum of money changing hands from an employer to a worker in return for a claim to be withdrawn, the settlement agreement will usually include a standard non-disclosure clause. This, if agreed to by the employee, will prevent them discussing, or perhaps even mentioning, the case outside a small circle of family and legal advisers. If the employee is reluctant to take a vow of silence, the settlement agreement may well fall through. Some employees agree to the non-disclosure clause and then reveal details of the claim, perhaps to the press. From a legal point of view, this is generally accepted as being a breach of contract. The employer may then seek to recover, through the civil courts, the money paid in settlement. This may be a risk that a worker who is determined to expose the actions of an employer may be prepared to take.