Litigation PR: Dealing with discrimination

Legal teams need confidence in PR advisers to ensure the right mix of media coverage, finds Richard Carpenter.

McConnell versus the Ministry of Defence, Barton versus Investec, Bower versus Schroders - names that have all been in the headlines as Angela McConnell, Louise Barton and Julie Bower each took their former employers to court to varying degrees of success in high-profile sexual discrimination cases.

There appears to have been a proliferation of such cases in the news recently. When a story has the potential to cover money, power and sex in the full glare of public scrutiny, it's hardly surprising that the press give these cases so much attention. Furthermore, Allen & Overy employment practice partner Karen Seward says that recent changes in the law and the EU prioritising sexual discrimination issues have made it easier to bring cases.

With these high levels of media attention, plus the complexities of the law, specialist PR advice is often warranted for sexual discrimination cases. But depending on which side the PRO is working for - be it the plaintiff or defendant - gaining high levels of media exposure will be regarded differently.

The skill lies in balancing the fear of reputational risk with the concern that an easy settlement could open the floodgates to more claims. 'The legal strategy drives the communications process in all of these cases,' says Sue Stapely, a qualified lawyer who specialises in communications advice on legal issues at Quiller Consultants.

She points out that it is crucial the legal team has confidence in its comms advisers. It needs to feel comfortable that PR advisers understand the processes in question, how the case is likely to proceed, and the strategy that is being followed by the legal team. A wrong step at the wrong time can, after all, not only damage the client's reputation - it could lead to the whole case collapsing with even greater ramifications.

Protecting the brand

Those concerns are echoed by other consultants that have grown a reputation in the field. Gavin Ingham Brooke, managing director at legal affairs specialist Spada, notes that lawyers are ultimately concerned with winning the case whereas the PR team is interested in protecting a brand. Marrying the two objectives is the key to success. 'Sexual discrimination cases are particularly sensitive issues due to the very serious potential for individual defamation and the corrosive effect on corporate reputation,' he says. 'A lot of cases tend to settle before they get to the courtroom or tribunal. Quite a lot of it is about the pressure on organisations to settle, instead of having their dirty linen washed in public.'

In communications terms it is necessary to manage reactions to information that you would not normally like to be made public. On the employer's side of the equation, there is a need to work with the legal team and check the basis of the claim in the first place. 'You've got to ensure that the organisation has a means of defence because the whole way the company deals with its people will come under scrutiny,' says Stapely.

'Sometimes it's simply a matter of linguistic patterns in the workplace or a style to corporate entertaining that unconsciously involves discrimination.

You need to check how it comports itself in these situations so that you know what to expect.'

On the individual's side, they need to understand the level of public interest that will arise from their case. Will they be ready for the mud-slinging? What areas of their case or past behaviour are potential weaknesses?

'It's impossible to bring in communications specialists or lawyers at too early a stage,' adds Stapely. 'The more time you have to prepare properly, the better chance you have of defending reputation and doing a good job. You're aiming to make sure that there are no holes in the evidence that might give rise to communications embarrassments.'

'Private' information challenge

Bell Yard Communications director Melanie Riley notes that one of the greatest comms challenges in sexual discrimination cases is the fact that the 'private' information comes into the public domain. She points out that this is the sort of information that individuals or employers would not normally need to worry about being covered in the media. But if salacious facts are dragged out in a tribunal or courtroom, they may well be referred to time and again by journalists in the future. 'It's not just the damage done at the time, it's the ongoing reputational effect you have to watch out for,' she says.

In these cases, good litigation PR means advising the legal team of likely media reactions to certain legal strategies and language. Stapely says she has often suggested that lawyers moderate some of their language on the off chance that it might leak into the public domain. The skill is helping them tone down some language while ensuring the thrust of the argument remains.

She says lawyers are used to using extremely robust language in order to promote the cause of their clients. But that sort of language could have a wholly different meaning if discovered by a journalist and then used to paint a certain picture of a company that will defend its actions at all costs. Legal arguments might not look so valid when cut and pasted into a tabloid environment.

Each case warrants a different comms approach but Ingham Brooke offers a word or two of caution. 'By default, you cannot run a legal process in the pages of the media - the lawyers run the show. You have to be very careful at all times not to say anything that could be misinterpreted,' he says.

His advice to employers keen to avoid being scrutinised in the full glare of a sexual discrimination case is to make sure that all their codes and practices are up to scratch: 'The best way to avoid it altogether is by having policies and procedures in place for dealing fairly with people - and then ensuring that people adhere to them. That means having very strong corporate governance and ethical policies. You cannot underestimate the damage that can be done by these sorts of cases so prevention is far better than any cure,' he adds.

High levels of media attention can certainly ramp up the reputational risk and put pressure on the employer to come to some form of settlement as quickly as possible.

Hiring specialist litigation PROs can be well worth the cost to both sides in such cases. For the employer, it can help limit reputational damage; for the ex-employee it may turn the situation towards a favourable settlement.

The challenge remains for PROs to ensure the public remember who won or lost, and make sure it is this fact that gets in the press, rather than salacious details that may leak out in the process.

STEVEN HORKULAK V CANTOR FITZGERALD INT

It is not just sexual discrimination cases that are on the rise.

Changes in the legal environment mean that other discrimination, bullying and harassment cases are set to increase in number, too.

Take last year's case of Steven Horkulak v Cantor Fitzgerald International.

Horkulak was a managing director at Cantor until he left in June 2000.

He claimed wrongful dismissal as a result of the 'culture of bullying and abuse at Cantor'.

Bell Yard Communications director Melanie Riley worked alongside Horkulak's lawyers, offering PR advice and support. 'We believed that Cantor was likely to take an aggressive stance in the litigation given that the claimant's case centred on his treatment at the hands of its top man in the UK - Lee Amaitis,' she says.

Pre-trial preparation involved preparing for attacks on their client's character and sourcing information from a 'High Court battle' that Cantor had been involved in with ICAP the previous year.

Riley says that the facts of the case spoke for themselves but she and her colleagues were keen to point out some of the more media-friendly quotes from the witness box: 'Of particular interest were the examples of Amaitis's use of abusive obscenities.' At the end of the case, the judge found in favour of Horkulak and awarded him nearly £1m in damages. Riley adds: 'To finish up we picked on various lawyers' views that this case sent a strong signal to City employers that whatever the level of pay, it does not override an employee's right to be treated with decency and respect in the workplace.'

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