What are the most common employment law mistakes made by employers?  That was the question put to arbitrator, mediator and independent workplace investigator Nick Milanovic and myself during a recent joint presentation.  Over the next few weeks will be sharing our view of the ten most common employment law mistakes made by HR managers and business owners.  We begin with a look at the negative consequences of using aggressive tactics or outrageous positions in an effort to move the other party to settlement via fear.

Aggressive litigation tactics by employers are usually met with uncompromising legal positions by plaintiffs and all you have succeeded in doing is increasing the cost of litigation and reducing the possibility of resolving the matter without a hearing.

There is an emotional component to resolving every employment dispute for each party to a lawsuit.  Anger and loss are usually the prime emotions for employees who have had their employment terminated.  If you use a strategy designed to back an individual into a cost-conscious settlement or withdraw their case they will react in kind.  A person backed into a corner has no choice but to come out fighting and this diminishes the potential for settlement.  You have just stoked the fires of litigation.

At the same time, HR managers and business owners should be aware of their own emotional state during settlement discussions. An element of remorse or guilt or a need to justify ones decision often influences individuals who are tasked with discharging an employee whether cause is present or not.  These feelings can unknowingly influence the manner of dismissal and settlement discussions.  For example, you may feel that a discharged employee was treated fairly during his or her tenure and offered reasonable package, despite the fact the employee’s performance was unsatisfactory.  Taken by surprise by the allegations made by the employee or the position taken in a demand letter, may cause you to react angrily and instruct counsel to withdraw an offer and, in exceptional cases, file a counter claim.  In most cases, this would be a mistake because it would incite and prolong litigation: The former employee will become more emotional; the employee’s lawyer may assume the financial risks of going to trial in order to develop his or her reputation; and hardball tactics will expose your company to additional claims for costs.

J.P. Zubec