Here’s an interesting and rather disturbing story.
Earlier this year the recruitment firm Hays was accused of racism after three employees claimed they were subjected to abuse by colleagues and managers. The employment tribunal started this week and the accusations were repeated in the usual lurid detail.
What is different about this case, though, is that, according to the Guardian, the employer is suing the claimants for libel.
An employment tribunal claim, especially one for race or sex discrimination, can see a company’s name dragged through the mud. Usually, the sensational allegations are reported at length but if most of the accusations against the employer are dismissed by the court, the news rarely gets beyond the HR and employment law press. People are therefore more likely to remember the allegations than the final verdict.
Vexatious claimants are a frustrating problem for employers. It is understandable that exasperated managers might try to fight back with whatever legal weapons they can find. Even so, the use of libel law is a worrying development.
The trouble with English libel law is that it reverses the usual innocent-until-proven-guilty rule. In a libel case it is up to the defendants to prove that their allegations are true. It is also extremely expensive if they lose as there is no cap on damages.
An employment tribunal can sometimes find in favour of claimants, judging that, in the light of all the evidence, some discrimination has occurred, without ruling that all the allegations presented were true. In theory, then, it would be possible for the men claiming against Hays to win their tribunal case while still having to prove in a libel case that all the things they alleged in the tribunal claim happened just as they said. That would be a lot harder to do.
I should make it clear that I’m not pre-judging the outcome of this case. The allegations certainly sound extreme but extreme things do sometimes happen, even in the most reputable companies. Regardless of whether or not the employees’ claims are true, completely made up or somewhere in between, the use of libel laws to defend against tribunal claims is a very worrying development. If it is allowed to become common practice it will deter many with legitimate cases from taking their employers to court. The risks would just be too great.
Anecdotal evidence suggests that vexatious employment tribunal claims are on the increase. They are extremely frustrating and can be very damaging for companies. But there has to be a better way of challenging them than employers resorting to libel laws.