By Kevin McNerney, Employment Law barrister at St John’s Buildings
General Counsel (GC) are senior legal figures who perform many functions, but one with an employment law emphasis crucially needs to save you money. Their main aim is to create a culture that day-in day-out ensures that ‘people’ issues are dealt with in a way that means employees don’t resort to litigation in the employment tribunal.
The UK is thick with laws, and employment law can seem like a paradise for the aggrieved current or ex-employee in the eyes of a non-lawyer businessperson. With fees for lodging claims abolished, an employee putting a claim in against their employer can seem to many like the equivalent of a free bet.
While nothing can entirely prevent claims being lodged at an employment tribunal, a good GC can encourage the application of policies and practices that help to ensure that problems don’t arise in the first place. After establishing good in-house practices, a diligent GC regularly audits them, and annually reports back to the board whether they are being observed. With their expertise in employment law, GCs can make sure that policies and procedures are not discriminatory, and that workplace rules are likely to be viewed as fair by an employment tribunal. They can also conduct investigations into alleged misconduct to the required standard, making the job of the decision-making manager much easier.
Where the GC has not been the investigator, he can advise the manager on the appropriateness of a particular sanction, while all the time leaving the ultimate decision with the person who has conduct of the disciplinary matter.
Sadly, policies and procedures can lie dormant in some dark corner of a company’s intranet. A good GC will breathe life into such policies, bring them out into the open and ensure that all the relevant people know of their existence.
Policies and procedures are a company’s best insurance policy against expensive litigation. Having a proactive GC will eliminate the nightmarish scenario of a manager being cross-examined in an employment tribunal on a policy that they have to admit to never seeing before.
GCs can interpret the seemingly complicated world of employment law, making it understandable to businesses. In this sense, they play a vital coaching role for senior members of staff and boards. George Bernard Shaw once said that any profession is an organised conspiracy against the laity. Lawyers can often live up to, and even surpass his warning, but the reality is that employment law is complicated. It requires a specialist to apply it to the particular factual situation in a business, in order to determine whether the liability of the business for the alleged actions will be made out.
Any GC worth their salary should be able to tell a business what will happen at an employment tribunal, with regards to any dispute the business has to deal with. That predictive, almost Gypsy Rose Lee-like quality, should be a central part of their job function. GCs should always be prepared to answer the fundamental question – “Are we going to win, and if not, how much will it cost?”. Anything else, while interesting, is just therapy.
GCs should save legal costs. Establish how much you are paying in legal costs and if you are thinking of hiring a general counsel with an emphasis on employment law find out how much you are spending defending claims at employment tribunals.
The anatomy of a typical employment tribunal claim that a company has to defend is such that most of the work (and therefore most of the costs) is done prior to any hearing at the employment tribunal. Providing a detailed written response to the claim, interviewing witnesses, producing witness statements and corralling the relevant documents to prove your case can, with a good GC, be done in house. They should be able to do all of the prehearing work subject to capacity. Given the vast majority of employment tribunal claims settle without a hearing, appointment of GCs should see a reduction in cost.
Employment law GCs can also bring the same keen eye to legal costs in respect of non-employment law matters that the business has to deal with. They could, for example, establish an annual beauty contest for legal advice providers in non-employment law matters. Relatively straightforward, and with the market to provide legal services keen as it is, that parade of potential suppliers bidding for business could lead to a year-on-year cost saving.
So, in summary, a GC with an employment law specialism could stop the fires occurring in the first place. If fires do break out, GCs can make sure they are put out a little with as little cost as possible.