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How to avoid the Covid-19 wave of litigation

28th Jan 2021
Consultant CMP
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Legal claims against employers are expected to rise by 40% in 2021, according to early evidence from claims management firms.

Research suggests the threat of Covid-19 has heightened employee anxieties, leading to a willingness to turn to legal action for protection and compensation. In its study, risk management expert Gallagher has flagged overworking, negligence and unsafe working conditions as the top reasons for claims. 52% of business leaders interviewed admitted to being “seriously concerned” about the potential of being sued by staff who believed they had contracted coronavirus in their workplace.

The BBC reported last week how the Health & Safety Executive had received 134,000 complaints about unsafe working environments due to Covid-19 since the start of the pandemic - but, so far, has only issued 192 enforcement notices. Is the workforce feeling listened to and safe?

First of all, an employer’s duty of care for its staff means HR and management acting on HSE advice of keeping workplaces safe, and that what’s asked of employees, in terms of their workload and response to the need for change, is reasonable.

But things go wrong. People make mistakes. There are different attitudes to what’s ‘safe’ and what’s ‘reasonable’. And that’s why a positive culture of talking and listening in the workplace is so important. While litigation during this period of crisis is a threat to any employer, resorting to the extreme of taking legal action will always feel far less necessary, much less appropriate, in organisations where staff know they are being listened to and there are established channels of support internally to deal with grievances and conflict.

Here’s how HR can help make sure their organisation isn’t part of the sharp rise in litigation statistics.

Look closely at how employee grievances are dealt with. Who gets involved with dealing with issues at the earliest stages, and how are they are actually being handled. Is there a level of consistency in the approach and are there options that can be offered to to help avoid resorting to formal processes?

Make informal resolutions and mediation the norm. Easy access to mediation is important. Employers benefit most of all from having an established service that people can turn to as the standard, informal route. Mediation then becomes part of the culture, commonly used and trusted, with nothing remarkable or uncomfortable about it. Less and less management time is needed; issues are picked up and dealt with early.

Ensure there’s a basis of trust. Mediation services need to built on professional standards, trained staff and/or external support. Similarly, when it comes to investigations into more serious and complex cases there has to be trust in the standards being used and the capability of internal staff involved. There are no formal standards for investigations that have to be adhered to - which means an added need to pay attention to best practice standards to make sure investigations are watertight. 

Develop better conversation skills across the organisation. Reconciliation and better employee relations in general, comes from open conversations that lead to understanding. That means higher levels of conversation skills across levels, to mean there are more conversations based on empathy, maturity and self-awareness - the ability to admit when our own manner or behaviour has contributed to a problem. It’s not just about avoiding conflict. Challenging conversations are good for business - for encouraging new perspectives and innovation, as a basis for a better working environment, better self-awareness, more positivity and sense of motivation. But dealing with difficult conversations is a skill, requiring active listening, empathy, emotional intelligence, the ability to be self-reflective. For line managers it’s essential.

Encourage the creation of a ‘clear air’ culture. Workplace pressures, new routines and use of technology are all acting against the everyday flow of conversations. Businesses want action and efficiency without debate. But conversations only improve through being a natural and regular part of working lives, not as an event - being summoned to a meeting, or into a weekly team slot. Frequent, open and trusting conversations need to be part of the culture, encouraged and supported.

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