Running a business involves so many decisions!
Stabilizing or growing your business takes a lot of mental work. Building your team, optimizing operations, ensuring everything runs smoothly AND makes money. While thinking offensively certainly moves your business forward, being defensive-minded protects your business.
Litigation is one thing that many leaders fail to account for and it could derail gains made in your business.
For employers, being prepared doesn’t mean expecting the worst. It means having practical systems in place so your team knows what to do if a workplace dispute becomes a legal one.
Litigation
It’s a word feared by many, and experienced by few. However, do not undermine it’s power!
Not only can it hurt your business, it also affects mental health of the people involved, especially when they are not expecting it. This, in turn impacts productivity and culture in your workplace.
For a busy employer, litigation can quickly pull attention away from running the business. A little preparation now can make a big difference when timelines suddenly matter.
In its recent fact sheet on “Mental Health at Work” the World Health Organization indicates excessive workloads or work pace, unclear job role, and a feeling of lack of control over workload or job design are risks to mental health at work.
In my decades of experience in civil litigation, I have observed the mental health toll that litigation takes on all involved. When businesses fail to anticipate the possibility of litigation and are taken by surprise when it strikes, it is very stressful. Litigation, once started, is not an optional task, and thinking, “I’ll do this task when I have time,” does not work, as there are many mandatory and hard deadlines set by legislation with court rules to follow. Failure to abide by these deadlines could have irreversible consequences.
For example, in Ontario, when a business is hit with a Statement of Claim, they have 20 days to respond by providing their Statement of Defence. Within that 20 days, they must gather their evidence, retain a lawyer, draft a Statement of Defence, use proper protocols for serving the document and filing it at court. Acting fast when you’re not expecting something can be very stressful! The quicker your business makes decisions and gives the legal team what they need, the better.
According to the World Health Organization, methods for protecting mental health include training leaders to understand how to manage job stressors; and building stress management skills. Integrating a mental health focus into relevant policies is a proactive method for protecting the mental health of your workforce.
Think of litigation readiness like any other important business process: clear responsibilities, good records and the right professional support help everyone respond more effectively.
When applied to your litigation management business process, this could mean:
Assume you WILL be faced with a law suit and plan for it. When your team is waiting for it to happen, rather than surprised, it will be less stressful as their job descriptions already outline what role they have in the litigation process. It brings clarity to their duties.
Design workflows so that personnel know who is responsible, what they need to do and when it needs to happen. Having a sense of control over the litigation process helps to mitigate stress.
Be diligent and forward-thinking in your daily work. Part of avoiding the sudden excessive workload for a new litigation matter depends on the quality of your record keeping. Tracking should be done regularly and be easy to find. When you have a problem employee and are planning to terminate, be mindful to document your concerns, conversations, decisions and reasons so that when the lawyers ask for your evidence, not only is it already done, but it’s helpful to your case because it was prepared in real time. Preparing evidence for litigation matters is time consuming, but the better prepared you are upfront saves you time during the litigation process, and being able to carry on near to your normal workload will relieve some stress from the onerous burden of collecting evidence.
How to proactively build your business systems to account for litigation from terminated employees, so you minimize the stress of it:
So, what does proactive litigation preparation look like in practice for an employer? Start with the systems you already use every day.
Ensure your expectations are communicated to your workforce through Policies, Handbooks, Training materials. This kind of documentation informs the courts of what you expect from your employees and how you let them know about carrying out their jobs. So, when a terminated employee sues you, your grounds for termination are supported.
Document important conversations. The quality of verbal evidence is more likely to be accepted in court if it was documented at the time, rather than after-the-fact. Memories fade and more weight is given to notes taken at the time. Remember to write down dates and the names of people involved! As well as the reasons for your decisions. Be mindful of compliance here, as business decisions should not infringe on any protected employee rights, with health and safety, human rights being only some examples.
Be Compliant! The scope of remaining compliant as an Employer in Canada is not easy, as there are many laws employers must abide by. Small investments in legal advice help prepare your business against a potential threat of litigation. Our lawyers answer any questions you have on hiring, termination, accommodations and more!
The goal is simple: make compliance and good documentation part of your regular operations, rather than something you scramble to address when a dispute appears.
Steps to Ensuring Compliance:
- Hire a compliance or risk officer;
- Always seek legal advice when hiring or terminating employees, or making changes in your workforce;
- Retain legal counsel for annual employment compliance audits;
- Retain legal counsel for ongoing employment counsel;
- Retain legal counsel to refresh your Employee Handbook and internal Policies;
You don’t need to wait for a Statement of Claim to start preparing. If you want to strengthen your workplace policies, documentation, termination processes or employment compliance practices, talk to the SpringLaw team. We’ll help you spot potential gaps, build practical systems and prepare your business for workplace legal issues before they become bigger headaches. Contact us to get started.
