Episode 341 · 1 October 2026 · 58:12

Why Your HR Policies Won't Save You in Court, with Employment Solicitor Roy Magara

Featuring Employment Solicitor Roy Magara

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Al ElliottLet me tell you a bit of a horror story here. 2 women were dismissed from the same housing association in the same week. One was accused of fiddling the accounts. The other was accused of selling drugs to people the charity was there to help.

Leanne ElliottHowever, the employer was smart. They, of course, kept detailed minutes of both disciplinary meetings, typed up, filed. They looked watertight. Then one of the women reads hers.

Al ElliottTurns out she had a secret recording of the discussion. This is like an episode of Suits. We'll come back to what happened shortly, but it's a story every founder should hear today rather than 3 years down the line when it's going to cost them 6 figures or more.

Leanne ElliottOur guest today is Roy Magara, an employment solicitor advocate who has defended employers and represented employees. He says the biggest cases he sees don't start as big cases.

Roy MagaraMost employment disputes don't actually, in my view at least, start as disputes. They start with misunderstandings, Strain relationships, something that's left unsaid.

Leanne ElliottToday is a lesson every founder, manager, or HR leader needs to hear, and you'll learn why your HR policies are unlikely to save you in court. Hello and welcome to Truth, Lies and Work, the award-winning podcast where behavioural science meets workplace culture, brought to you by the HubSpot Podcast Network, the audio destination for business professionals. My name is Leanne. I'm a Chartered Occupational Psychologist.

Al ElliottMy name is Al, I'm a business owner.

Leanne ElliottAnd we are here to help you simplify the science of work.

Al ElliottNow, our guest today, Roy, is the founder of Magara Law, an employment law firm with a team of 11. He acts for both sides, so he knows exactly what an employee's lawyer will do with the email you fire off when someone raises a grievance.

Leanne ElliottAnd that's the point. Most founders think about HR policies as a box to tick. Roy says the document is rarely the problem. The problem is whether anyone follows it when something goes wrong, and whether you can prove it 2 years later in front of a judge.

Al ElliottAnd that 2 years is important because the waitlist for tribunal hearings is now stretching in the UK to 2029. So that proof matters more than ever because you're not going to remember it 4 years down the line.

Leanne ElliottSo today we're covering what to do before a problem starts, what to do in the first hour when a problem does appear, and when to pick up the phone to a lawyer, and what you can do today so you may never need a lawyer again. We'll join Roy after this very quick break.

Al ElliottIf you have support tickets in your business, then this is going to sound frighteningly familiar. You open the queue on Monday morning, 200 tickets before even the first sip of coffee, and you already know what's in there. Password reset requests, order updates, the same questions over and over again. Hey, what if that part of the job just handled itself?

Leanne ElliottHubSpot Customer Agent resolves those repeat tickets using your actual CRM data and knowledge base so your team can focus on the conversations that actually need them and your customers get answers faster.

Al ElliottCheck out hubspot.com, the agentic customer platform for growing businesses.

Roy MagaraMy name's Roy Magara and I'm an employment solicitor advocate at Magara Law. Tell us a bit more. How did Magara Law come about?

Al ElliottWhy, why did we need another law firm?

Roy MagaraYeah, quite right. We probably need far fewer of those. But I think the reality is most of us work, or know people who work, or are involved in work in some way, shape, or form. And it came to a point quite clearly where, for me, I think the biggest employment law problems I see aren't necessarily caused by founders or employees making commercially difficult decisions or purposely getting things wrong. But the reality is there are things that happen in our work that affect our everyday.

Al ElliottYeah.

Roy MagaraWe talk about work as soon as we get home. We think about it over the weekend. And for some people, before they get into bed on Sunday night, they think, oh crumbs, it's Monday tomorrow. And the rest trying to trudge through the rest of the week. It clearly affects our everyday and starting Magara Law and founding it and doing things the way that we do, which I'm really looking forward to exploring more with you guys today. It allows me the opportunity to positively affect people's normal day-to-day. For the better.

Al ElliottYeah. And I think what we're going to try and do today is sort of split this up into 4 sections. We'll talk about prevention. What can we do to kind of prevent problems? Then we're going to talk about what to do when a problem does kick off. Then we— there's a question for you, which I think you're going to be unbiased, but it's going to be, when can you deal with in-house? When do you need a lawyer? And then finally, when it escalates, what happens then? So let's start off with the kind of prevention better than cure. This is the stuff you should probably have before you need it. So, Let's imagine we have a 25-person consultancy, digital agency, whatever you want to imagine. And they've got the— they think they've got their HR set up. What's the one document or process that you'd bet money was either missing or out of date?

Roy MagaraInterestingly, I think I wouldn't necessarily put all of my money on one particular document per se. I think I'd likely put it on management process behind the documents. So oftentimes you can have a fantastic employee handbook sitting on SharePoint somewhere, Or on the internet. You can have a disciplinary policy, a grievance policy, a sickness absence policy, you name it, and everything else. In my view, the problem is that when something happens, not everybody actually follows it. And I see this particularly as companies grow. So for example, at 5 employees, the founder knows everything. They've got one person who's implemented it. They live, they breathe it every day. And they've got their kind of small cohort of people who sort of follow the leader. So they know who is performing, who is unhappy, who's really happy, who's doing well, Who's late, and why somebody had an argument last Tuesday. At 25 employees, in my view, that changes. So, I often find in practice, you've got managers making those decisions on behalf of the business. You've got your middle management that sets in. So, somebody else aside from the founder, for example, is managing that performance. Somebody else is approving flexible working, or somebody receives a—

Al ElliottBonus.

Roy MagaraDisability disclosure. Someone else hears an employee say, don't think that's safe. What are we going to do about that? And so founders often find that they then have these managers who are exercising employment law risk on a day-to-day basis on behalf of the company, usually without thinking about it in terms of what's actually the company process and system that we need to follow. If I walked into a company business today, One of my first questions would be, when somebody raises a problem, who knows exactly what happens next? As opposed to, do we have a grievance policy? Because we need that document in place. I think the follow-up questions need to be, who receives the grievance? Who investigates it? Who decides the outcome? Who knows and who's going to hear about the appeal? What happens if the grievance is actually against the founder? And What records are kept to deal with that? So in my view, the operational layer is where I find, I tend to find the gaps.

Al ElliottAnd so if we're still sticking at that sort of 25-employee mark, then do you kind of see that there are dedicated people to do all this, or does it tend to fall on the founder's shoulders?

Roy MagaraIt's a mix, but I think by the time you get to around 25 or so people, more often than not, there is either an HR consultant on board Or there is an in-house HR team. But even then, there can be issues because it comes with the nature of the business. For example, I had a client who did have in-house HR, and they happened to have an employee disclose to them under the guise of confidentiality that they had 3 counts of criminal allegations against them in a Crown Court. And months later, The founder, I'm not quite sure how, recall how this all came about, but eventually the founder had found out separately that this particular employee was subject to these Crown Court proceedings. And I think HR happened to be away at the time, so instructed the line manager to carry out disciplinary action against the employee. And it was only when the HR came back and said, whoa, hang on, actually, I was aware of this. You're disciplining this employee for not disclosing these understandably serious allegations, but actually I was told. So you have several questions in place. Okay, well, appreciate employee may have said this is confidential, but there seemed to have been a lack of understanding as to the boundaries of what that confidentiality looked like. Who else needed to know about this? And how do we prevent something like that disciplinary happening if, for example, The only one other person who knew about it at the time, which was HR, when that person is away or something happens to that individual, how do we document and ensure that we can honor GDPR employee confidentiality, but still ensure that the business is running in a safe and legally compliant way?

Al ElliottThat makes sense. That makes sense. Stuff I never would have thought of, I suppose, as a founder. Leanne, have you got anything to add at this point?

Leanne ElliottWe have a lot of questions that come in from employees that often aren't framed in a way that is linked to policy. So, we'll get questions around things like an unfair dismissal or dating at work, or even something around holiday leave that wasn't approved. And it feels like, from what you were saying before, these policies are in place, but they're sat on a drive somewhere. Nobody really—

Roy MagaraYeah.

Leanne Elliottreads them or does anything with them. So, I guess my question is, if that's a very common problem that you've seen, and we've seen as well from people that get in touch with the show, what can founders do proactively to get these policies off the drive and into organisational life sooner, before they're needed?

Roy MagaraI think that's a great question. And I think that's got to be taken from the founder and ensure that those systems, and I'm probably going to use that word quite often, in this podcast gets taken on board. And I think I found even in my own journey of starting off Magara Law, and we're a team of 11 right now, but as we grow, I'm quite quickly learning that if all roads lead to Roy, there's going to be a very serious bottleneck as we continue to grow. What founders need to do in this sort of example you've highlighted is ensure that there are systems in place that are learned by every single person that are in there. So it's not just A management duty, for example, to know where to signpost their new employees to when they're going through their induction process, say, hey, just so you know, your policies exist here, please tick this box. It's ensuring that there's a system in place that ensures that not only that it's been reviewed by the new employee, for example, but that there's continuous learning and reviews that take place. And one thing that I often advise our employer clients who we have on a retainer basis, is periodic training. Periodic training in terms of what new legislation is to come. And as some of our listeners will know, that there are plenty of legislative changes coming in October 2026, in January '27. There are several that have come as well that actually changed probably several of these policies that are busy gathering dust in all manner of tribes. So, systems need to be put in place. Training needs to happen in terms of what is going to be coming to pass, but also training needs to happen in terms of what is going on in the workplace.

Leanne ElliottMm-hmm.

Roy MagaraPeriodically, as I say, and by periodically, my suggestion would be at least every 6 months, there needs to be that, because we all know human nature. We all forget, we all get busy, we all get stuck in the run-of-the-mill, and we all need that constant reminding.

Leanne ElliottI can't help but think of some of the beautiful founders and entrepreneurs that we've worked with, and the word policy usually gets an eye roll, a grunt, or a, yeah, you know, I know we have to have it, and it's the boring stuff. You said that you work differently with With your clients, is there a way to get founders excited about this kind of stuff, or a way for them to understand how important it is and how it can actually facilitate the growth of their business rather than be something they just have to tick off?

Roy MagaraMost founders will think commercially when they think about problems, because most founders and entrepreneurs are quite time poor, I would say. And so, I don't want to say scaremongering, but I think helping them understand the value of time If they do implement these things, I think it makes a key difference because we often find that when we come in, we've come in when things have all gone wrong. More often than not, when an employer says, you know what, fine, I'll get a lawyer involved. And I'll often say to them, yeah, see, I wish we had this conversation at least 2 months ago, because if we had, you wouldn't be thinking about having to spend the next 2, 3, 4 years in this employment tribunal process. And by the way, you're going to spend £20,000 or £30,000 after this. And unfortunately, there's no guarantee that you might be successful because it's a matter of giving it in the hands of a judge who's going to decide. It's not necessarily always about how good I think your defense is going to be. And sometimes for employers, yes, one can settle, but actually, if you have an employee or an ex-employee who thinks, I want £100,000 for my claim, of course, usually it's spurious and a ridiculous amount of money. But if they think that, and that's what they want, There's no point an employer trying to think pragmatically about settlement. They almost have no choice but to spend that £20,000 defending that claim, as opposed to trying to think, oh, if I give this employee £10,000, they'll go away. Hello, employer wants £100,000. So I think one of the things I've learned from defending employers in particular, and which hopefully helps get to the heart of your question, how do we help founders get excited about policies? It's about getting them as excited about not ending up in a tribunal because they know that they've followed their processes properly. They need to see the value in having contemporaneous documentation becoming really significant months and sometimes years later in the process, so that when they can come along, we can say, you know what, I can see your policies are in place for what counts as misconduct, for example, or what counts as a Your performance criteria that you assess everyone on. I can see that you followed your procedure. Should this employee who's left go to any competent employment lawyer on the other side, they ought to be saying, really sorry, you haven't got a claim. So, to give an example, if I may, in terms of one of my experiences last year, I represented an employer who was facing some claims for Whistleblowing detriment and automatic unfair dismissal. And the claims— I'll start with the end in mind. The claims didn't succeed.

Al ElliottHallelujah.

Roy MagaraClient was very happy. But what became very apparent in that process was that when you're standing before or sitting before a tribunal, you can't just say, oh, that isn't why we dismissed them. You have to prove exactly what happened as best you can in the face of several inferences We have a claimant who is, in this instance, crying wolf and saying, they did it, this is why they did it. And they've got all of these stories in that case, with a lot of creative license as to why the respondent was in the wrong. And for the employer, what they need to show is, listen, these are our policies. This is what was the concern at the time. This is who made the decision. This is what information we had. These are what the contemporaneous documents say. And in this example, I'm thinking of, as I say, you have a claimant who is even trying to cast different interpretations with great creative license on this contemporaneous evidence, which actually just in black and white, it is what it is. And the claimant was in the wrong. And in my view, the employer was able to win that claim. Yes, of course, they had wonderful representation, but more so due Because of the fact that they listened throughout and they had very, very good policies in place. They had very good paperwork and they followed those procedures to the T.

Al ElliottNice. Okay. So, I think we might have actually convinced a few people to go, okay, yeah, I need to do something about this. So, imagine that they go, right, I'm going to do something this week. And in their head, they've got sort of 3 piles of work. They've got contracts, they've got policies, and they've got handbooks. Help us find out where we should start with this.

Roy MagaraIf I'm going to pick one or start with one, I should say, I would immediately go for the contract and actually choose a contract. And I think the handbook and policies govern how you manage the relationship, but the employment contract establishes the architecture of the relationship itself from the very beginning. And Contracts, you can rarely change without consent. Handbooks and policies, you can change all the day long, as it were, as long as it's reasonable throughout the employee relationship. But as far as the employment contract is concerned, that's what governs what is the employee's role, where do they work, what are their hours, what are they paid, how are they paid, what happens with bonuses, are they discretionary, are they set on a particular set of criteria, what notice applies. What flexibility does the employer have should they wish to change it without the employee's consent? What confidentiality obligations exist? What restrictions apply when they leave? I think those questions become much more expensive to answer when the relationship has already broken down. And the reality is, most people, founders or employees, don't think about what's going to go wrong at the start. Or most employers don't think about the end, as it were, at the beginning, because it's all nice and fresh and new. And you've got this wonderful, normally honeymoon period. But the reality is of several human relationships, but employment relationships too, is that most employees don't stick around into retirement. They're going to stay for a particular tenure, and then for whatever reason, they're going to leave. And that's just the nature of business. That's the nature of employment. And I regularly see Disputes where both sides have completely different assumptions about what was agreed when it was the heyday, when the sun was shining and all was new and the flowers were fresh. So, from a— for a growing business, I think the contract also needs to grow with you. And the contract you use for employee number 3 is not going to be appropriate for employee number 25, when things have clearly changed and the business has grown. And it's almost certainly not going to be appropriate for a senior executive. When you're hiring to take the business to the next stage, particularly at that sort of 25-employee level. So I think for those reasons, I'd start with a properly drafted contract and then I'd build the policies and management processes around it.

Al ElliottWell, let's assume that this founder hasn't done that. And let's just say that the proverbials hit the fan. Someone's raised a grievance. There's a big problem come up. Now, tell me, what is the first thing they should do? And what is the thing they should never do?

Roy MagaraI would say the first thing never to do is to react emotionally. And I think that is quite easy to say, but often quite difficult to do. You might have someone who raises a grievance, and the first thing that the recipient might do is to forward that to so-and-so and say, I can't believe so-and-so did this, or Several times where someone has said, oh, crumbs, use creative license as to the fact that most people don't say crumbs, probably apart from me. But they'll forward that and they'll say all manner of things, usually negative, against the person who's raised the grievance. Yet, I think most forget that there's this thing called a data access request, which in very simple terms is the fact that any employee, usually in this context, can ask an employer for anything and everything with their name on it.

Al ElliottYeah.

Roy MagaraOr their initials, or if it's referring to them. And what employers often forget is if that particular grievance escalates, or that person asks for that DSAR, that data subject access request, or that goes to a tribunal, well, disclosure is going to be a big problem because the employee is going to see so-and-so who immediately forwarded it on to someone else and said something negative about that. So yeah, don't put it in writing. That doesn't mean I'm saying, okay, call someone else instead and have a go that way. You've got to be very careful in terms of What data you're sharing and who you're sharing that with. What I would say that I think founders or employers should do in that regard is preserve, assess, and plan. So, if you think about that in a kind of step-by-step fashion, my view is preserve all the necessary emails, the messages, the meeting records, CCTV if you have that or if it's relevant, of course, policies and any documents and anything else that might matter in the context of that particular grievance. There have been several instances where employers have deleted, started deleting Slack conversations or things on Teams. And then you sort of say, yeah, so you sent me the screenshot. Why does it say, yeah, this has been deleted, or that's been deleted? And then you have a sort of tumbleweed moment that goes by. And then we're getting in touch with the IT team to see if it can be recovered. It looks embarrassing. So, I would often encourage managers, no matter how difficult it might be, because I do get the other school of thought. I do get that sort of self-preservation and that panic that sometimes managers might feel, particularly if the grievance is against them and they've seen it first before forwarding it on to someone else and they're worried about their own role. But I would often encourage managers not to rewrite history, preserve what actually exists. The second thing I say is often assess in terms of that next stage, whoever's dealing with the investigation of that particular grievance. What has actually happened? Let's separate the allegation from the evidence. Are there any immediate risks that we need to have a think about? Does somebody need to be suspended, for example, depending on the nature of the grievance? Particularly if it's one of a, I say, a more serious nature. All grievances are serious, but there might be a difference between someone saying, while I was making tea, I overheard so-and-so call me a cow, versus I've been sexually harassed by someone. So, there is a degree of difficulty and complexity is what I'm trying to highlight there. Because we need to have to acknowledge that suspension should never simply be an automatic next step for employers. Are there safeguarding issues like the example I highlighted earlier? What are the relationship dynamics? What do you do when actually you have a family-based business, for example, And it is the daughter who raises it against the brother or the sister-in-law or the whoever. Is there a discrimination allegation? Does the employee have a disability? Are there health concerns? There are so many things to assess right at that initial point that, again, you need to take the emotion out of it and you need to rationalize and assess that carefully. And that helps you get to the third thing that I'm about to say, which is plan. So that investigator, that person who's dealing with the grievance, needs to, in my view, work out what processes you're going to follow. Before you start, who's going to investigate it? Have you got enough people up the chain? Because the person who investigates ought not to be that person who might deal with the next step if it's going to be the grievance hearings, or if that person appeals, that ought not to be the same person who's dealt with either of those 2 steps who eventually deals with that appeal. And what information needs to be obtained along the way? So the thing, as I say, that often founders do is react, and usually it's an emotional reaction. Usually if it's against them, they're going to feel personally attacked. And I understand that, as a founder myself, founders ought to care very intensely about their business. But that email, that whatever they emotionally react to, might end up being read by an employment judge. So my advice is, if you don't have to answer to that entire case straight away, which more often you don't, acknowledge it, preserve the position, work out what's happened, and then you can respond properly. So speed is good. Haste is dangerous in those sorts of scenarios.

Al ElliottQuick announcement for all listeners. Yeah, I've got a, I've got a new toy on my, on my little deck thing so I can make my voice change. Anyway, sorry, Leanne.

Leanne ElliottI love it. Do it again.

Al ElliottHello, Leanne.

Leanne ElliottDo another one.

Al ElliottHello.

Leanne ElliottBut we didn't interrupt your podcast listening for, uh, for this. We actually interrupted it to tell you about one of our new favourite podcasts. It's called Success Story. It is hosted by Scott D. Clary, and it is brought to you by the HubSpot Podcast Network, the audio destination for business professionals. Success Story features question and answer sessions and conversations on sales, marketing, business startups, and entrepreneurship.

Al ElliottOh, and if you like this podcast, then I think you'll love Scott's episode in back in December, where the infamous Seth Godin talks about. So go listen to Success Stories wherever you get your podcasts. I love this. So did you say preserve, assess, and plan? Was that the 3 stages?

Roy MagaraCorrect. PAP, if you want to make it an acronym, but preserve, assess, and plan.

Al ElliottI do want to make an acronym. I do. I like that very much.

Leanne ElliottI have a question. Is there scenarios that you've seen where Taking what you were saying about people destroying evidence, where that's affected the outcome of the claim. So what I'm thinking is, say an employee has raised a grievance against a manager, evidence has, has been destroyed, and that actually, had that evidence been in place, then the manager would have been found, um, not guilty. Is that the right word? Not guilty of this grievance. Um, And it's gone the other way. Well, I guess what I'm trying to say is, have you seen circumstances where it should have gone another way, but because of managers' actions, it's ended in a worse situation for the individual and the business?

Roy MagaraYes, I can speak more truth to that in a slightly different vantage point, if I may, but I think the essence is still the same. I was actually acting for 2 claimants in this particular case against the employer. And the claimants, in short, there were 2 of them. One was a Black lady, the other was a white lady. The Black woman had brought a claim against the employer, it was a housing association. And in short, it was a race discrimination claim. She'd been called all names under the sun by the sort of main perp, but the perpetrator, as it were, was her allegation. And the white colleague had stood up for her in the middle of one of the altercations where she— where the first claimant had said to the perpetrator, you just, you've got to stop this. It's really It's really affecting me. This campaign has just got to end. And the allegation was that the perp had then sort of got in her face and told her to go back to her own country and said all manner of awful things to her. Her white colleague steps in and the perp then throws the office phone at her and all hell breaks loose in this particular altercation. It eventually transpired that the business had then dismissed about a week or so later on, Had dismissed the first claimant, Black lady, for fiddling with the accounts and had dismissed the second one for selling drugs to the service users. They had the minutes of all the meetings that they say took place. And in the context of the art of the discretion, it was the second claimant, the white lady, who had said, I've been dismissed for selling drugs, but I never said anything that they've said in these minutes. And throughout the time I was saying, okay, well, it's going to be a kind of he said, she said scenario. We'll of course put our best case forward, but often it's quite difficult when an employer is saying, here are the minutes of our meeting that we've done. And there isn't necessarily anything contemporaneously expressly from you at the time saying, actually, I disagree with these. And she was saying to me, no, I've never actually seen these before. I think these have been made up. Anyway, a few weeks before the tribunal hearing, she said to me, actually, I just remembered, I actually covertly recorded that meeting at the time, but I don't have that same phone. And she took a very long time trying to find this phone. And she eventually found it, fortunately, and she happened to have a covert recording of that. And this is genuinely, you can't make this up. She, it was a completely different set of events that took place in that, in comparison, in contrast to the minutes of that meeting to this recording. In this recording, she's saying, don't sell drugs, don't touch the stuff, never heard of that before. I would never do that. You can search my house. You can have my this, you can have my that. She disputed everything. But in the minutes of the meeting, it's recorded with her saying, yep, I did it. Don't really care. Do what you want. Yes, I sold these things. So in short, the employer had actually fabricated— they had rewritten history. They had fabricated the minutes of these meetings. And we eventually managed to get that into our disclosure. We put that before the tribunal. The other side still went on with their position that the minutes were true. And when it got to cross-examination, the other side's response was, well, she probably used AI to manufacture the AI recording. And this, by the way, is before the days of when ChatGPT was really a thing. And bless her soul, the claimant in question was not of the sort of IT technical competence to be able to get people's voices exactly how they ought to be and fabricate this whole thing. So to get to your point— oh, by the way, the respondent lost. But that wasn't very surprising because Their credibility was out of the window on this particular point. So there are times when employers do panic or do choose to try and rewrite what actually genuinely happened. And that just assassinates their credibility before a tribunal. There are times when I've had employers who say, I know I've got this particular email. somewhere, but this employee has left. We get IT involved, and it turns out that employee has deleted everything, and then deleted everything from the deleted items before they left, and has left the employer again in the lurch. So founders, employers need to make sure that they have systems in place whereby, particularly when they are offboarding employees, that their confidential information is kept properly, that they've got proper backup systems in place, and they definitely need to make sure they're not fabricating.

Al ElliottMan, that was a roller coaster. That was like an episode of Suits. That was amazing.

Roy MagaraI lived it.

Al ElliottOh my God. Pull out some more stories like that, Roy. That's brilliant. Um, is there, is there, let me just talk a little bit about perhaps in-house versus, um, versus bringing a lawyer like you in. Is there a situation you think that a founder could resolve themself? Without being, you know, without legal help, if they follow a specific set of steps? I know you have to talk broadly here because you have to be careful, but—

Roy MagaraYes. I dare say, I'd probably say plenty of scenarios. I am very highly of the view that I don't think a business should phone an employment solicitor every time someone is 5 minutes late, every time a performance might dip. More often than not, Good communication is key. And often by the time it gets to me, it's clear that there've been a series of days, weeks, months, sometimes years of just exceptionally poor communication or misunderstanding of how standards need to be. So there are plenty of times where in-house concerns can be explained, examples can be given, managers can ask, are you okay? Like, what's, what's actually going on here? As opposed to just seeing a particular set of performance issues as a problem is actually understanding that those problems might arise out of something else. They might be because of a disability or something going on in someone's personal life. It might just be, by the way, because someone is a poor performer. Of course, there are plenty of worlds where that exists. But if that is the case, what support is appropriate? And how can that be reviewed? And how ought it to be documented? So, I think there are several sort of low-level or sort of everyday workplace disagreements equally that can be resolved by a good manager stepping in and having a sensible conversation before everybody reaches for formal procedures. Don't get me wrong, there is a time and place for formal procedures, but I often wonder how much can just be dealt with informally and quite early on. More often than not, in-house can deal with these sorts of issues. In my view, I say fairly easily. I appreciate relationships aren't necessarily so straightforward. But they often begin by at least 2 people who stop communicating properly. And as I say, by the time it gets to us as employment solicitors, there are grievances, there's sickness absence, there are allegations, there are counter-allegations, and then people eventually get entrenched in their positions. So I often describe this publicly in our blogs, on YouTube channel, et cetera, in very simple terms. Most employment disputes don't actually, in my view at least, start as disputes. They start with misunderstandings, strained relationships, something that's left unsaid. And I often find it when we do more so a lot of our mediation work, our workplace mediation, which in my view, again, there is a place for grievances and disciplinaries. But in my view, the work that we do from the mediation front can be really and truly healing. Because the issue that you have, and again, this can be dealt with in-house, although I often find with workplace mediation, it's often helpful to have someone external come in because there's less of an emotional attachment. Someone doesn't feel like they're caught in the middle. Someone is not thinking, well, you've got a better relationship with so-and-so who's dealing with the mediation. They're just going to come on side with you. You haven't got to worry too much about these sorts of relationships. But often find that mediation helps get people out of their entrenched positions and try and think about resolution themselves, and more clearly. And again, that is something in my view that could be done in-house. But every now and again, it's important to think holistically and think about the bigger picture. And that's where we, as employment sisters, can step in.

Leanne ElliottIs there a scenario that's the opposite? Is there a scenario where you'd say to a founder, if this happens, call me straight away?

Roy MagaraYes, I would say, well, several equally as well. There are plenty of times where the grievance is against the founder or against HR. More often than not, if there's a grievance that's raised against them personally, my view would be, get us involved and let's deal with it. I think equally, there are founders who simply might just be not very au fait with employment law or with HR provisions, and they do have us as their external help. In those sorts of scenarios, my view is, again, get us involved. We're happy to help if there's any lack of clarity, because then we can deal with that. In my view, I think a dangerous point is when a founder stops managing a situation and starts building a justification for an outcome that they've already decided upon. And we often see that, for example, in redundancy situations. So you can usually sort of see the moment. There's an email saying, We need to get rid of him, or don't care what the policy says, or can we just make this person redundant? And then someone is tasked with constructing a process around a conclusion. So my view would be, there are oftentimes when founders have complex issues with their staff. It might be that they're in financial difficulty. It might be that they've noticed that there's strained relationships. It might be that they're really concerned with someone's performance, but they're concerned that actually, This person has a disability. I'm not quite sure how and if this disability is relevant to this scenario. So rather than get to an end and then try and construct it around that, I would much rather someone pick up the phone or send us an email and speak to us. Because once the employee has the email, or once a decision has been communicated, we are no longer designing the safest route. We're managing the consequences of something that has already happened. And often the word I use with clients is, okay, let's think about damage control. And because I represent, or our firm represents employees as well, I know exactly what I would do with that email if I was on the claimant side. And so that, I think, is where this parallel world comes in. And there's a beauty of being able to help an employer understand, listen, if I was acting for the employee, This is exactly what I would do. So let's now try and build steps in place to mitigate that. So even if, because we can't control the employee, even if the employee does this thing, which we're hoping to avoid, at least we're protected. We've got our chronology in place. We've got our explanations in place. We followed our policies. We've got a clear paper trail. So if the employer subsequently says no decision has been made at this stage to the employee, well, that's—

Al ElliottOkay.

Roy MagaraContemporaneous emails suddenly becomes very important, and we're able to substantiate that as well with the history of what has actually happened.

Al ElliottRoy, did you say something earlier, almost in passing, that when you do a data access request, you can request anything with your name and your initials? Is that what you said?

Roy MagaraName, initials, even if it just says him or her, but that the context of the him or her is in reference to said individual.

Leanne ElliottYeah. Wow.

Roy MagaraYou can have that. Indeed. There are some exceptions. And often than not, employers might try to exceed those expectations. But yes, I think employers need to be exceptionally careful in terms of what goes in writing. And I think it's really important for them to understand that it's not just what's on your Teams, your Slack, or your emails. It's your text messages. It's your notebook. It's your WhatsApp. It's your random piece of paper. Legally speaking, it can be exceptionally pedantic in terms of what is required of employers when they receive a data access request and how they need to exercise that properly.

Al ElliottYeah, I think that's probably terrified a lot of people who've used code names and gone, actually, that's, yeah, that's not saved my backside, has it? Before we move on to like what happens when it goes like ass, guys, I just do want to have a quick question. Do you find there are like 3 or 4 main things that you're dealing with over and over again?

Roy MagaraNowadays, we deal with a lot of discrimination claims, I'd say. I think discrimination claims are definitely up there, and I'll break that down in a moment in terms of what type of discrimination claims we deal with. But there's that, and I think particularly when the unfair dismissal claims threshold drops from 2 years to 6 months, we're going to see Plenty more of those coming in from January 2027, but equally whistleblowing claims. So I think those are the top 3. In terms of discrimination claims, I'd probably break those down into disability discrimination claims in the main. Those are big at the moment. So things like ADHD, autism have received a lot of attention in the media, and they've equally been talked about a lot too. I think many people are finding, actually, I need to go and get myself assessed or speak to my GP, et cetera, about this, because I've noted that some of these characteristics might be why I do X, Y, and Z, and I might have, in this case, ADHD or autism or ADD or otherwise. So we often find that because of a rise in understanding of these sorts of conditions that will equate to a disability under the Equality Act, We often find that once they disclose it, the employer may not necessarily know how to deal with that or how to present the right reasonable adjustments and put them in place for these employees. So, we are in quite a, what I'll probably say, quite a fractious season at the moment where you have people getting, employers gaining a better understanding of who they are and how they work and how their mind works. And employers trying to figure out, okay, what sort of systems do we need to put in place to help these employees? And equally, when does it tip to, despite all that we've done, there is still a performance issue, and how do we still prevent that being a discrimination issue at the same time? So, we have a lot of advice given to employers around that, and equally a lot of employees who are concerned about their position within work for that. I think, What the rise in AI usage has done is open up in some ways an access to justice. It's also been an incredible headache for employers because they receive tens upon tens upon tens of pages worth of grievances, issues. But whilst our studies also allow employers to have a better understanding of actually, if I am going to raise this safety concern to employer, what does that actually mean in reality? So they're understanding things about whistleblowing and protected disclosures. And should they then have some kind of negative reaction toward that, some kind of retaliation or victimization because there's a health and safety concern at work, will they know what to do with that? So, we often find employers saying, okay, listen. I had one, for example, where the employee who was a health and safety advisor for the business had Noted that an employee had fallen asleep while driving a forklift truck at work. And he'd fortunately not injured anyone, but he had eventually sort of crashed into a sort of stockpile at work. Fortunately, he was fine. I mean, he definitely woke up after he crashed into this very tall framework. Fortunately, no one was injured, including himself. But she had then raised, escalated that internally. And the issue was when she looked to escalate that, the individual in question had said, well, actually it was only a lapse in judgment. And I think the only reason you're doing this is because of my race. And what the employer did is at that moment in time is say to the health and safety worker, don't take this any further. Just make this go away. Just a quick slap on the wrist. Don't go through our normal procedures because we don't want a race discrimination claim on our hands. But you then have this employee who's saying, I know it's got absolutely nothing to do with race. I've seen the CCTV. You've seen the CCTV. It's in the interest of everyone here, including our staff, to know that should something like You fall asleep on the wheel, on a forklift, in a warehouse, that is a problem and that there are steps to deal with that and to mitigate that from happening. But if we let this employee go, on the face of it, what message are you sending out to everyone else? And what the employer did is they then sanctioned the health and safety manager instead. And she then Somewhat unsurprisingly, eventually took work-related stress leave from work, was signed off, and now the employer's saying, oh crumbs, we've got a claim on our hands. Because this employee has gone away. Tricia, of course, knew what her rights were. We've got plenty of people in those sorts of scenarios who are kind of thinking, I'm now going to use AI to help me better understand. So we get a lot of those instructions coming along now of employers who ought to have done things better or gotten in touch with us much earlier on. And lastly, on this point of unfair dismissal, as I've mentioned, at the moment, the threshold to bring a claim, there are obviously exceptions, typical law, but the general rule is that you've got to be somewhere for at least 2 years before you can bring an unfair dismissal claim. That's dropping to 6 months. And there are plenty of employers who come to us and say, oh, phew, okay, we're at 23 months. Let's just get this person out now before they get to 2 years. Most of those aren't going to have that degree of flexibility in a very short amount of time when it drops 6 months. So, I expect that to increase.

Leanne ElliottI'm wondering, have you, are you starting to see any disputes coming in around AI in terms of its business use, its ethical use, it's replacing human capacity? Like, we hear a lot of fear around that. I'm wondering, is that starting to trickle down into the legal system at all?

Roy MagaraIn several different ways. I think one of the first things that comes to mind is there's an account of an individual who had, has, but even at the material time had a condition that affected, that affects his breathing. And what that means is that he sometimes took time to have to catch his breath in between sentences while giving answers. So where one might normally take note of inflection in tone, in words, and be able to understand where someone is going in the midst of a conversation, there might, would for this particular individual be moments of unnatural pauses, one could say, when answering questions. Now, this individual had to go through an interview process for a company. And this company used an AI tool That would, let's see, that the prompt would come up and then the camera would kind of come on and it would record the individual's answers. And the way that it knew that the individual would start and stop is, of course, when it was a natural pause or a wait, then it would sort of get answer done and it would move on. And somewhat unsurprisingly for this particular applicant, he went through this process, but because he had these natural, these So-called unnatural stops in time because he had to take longer than usual pauses in his answers. His answers weren't complete by the time he got through this AI interview. So unsurprisingly, he was kicked off the application train because of this particular disability issue. And so a claim's being brought, and it's a very interesting point about how the employer is now liable. for the fact that it's got this AI program that has discriminated on the face of it against this particular applicant because he wasn't able to get through for something that arose out of his disability. So, we're seeing plenty of very interesting ways that AI is supposed to be used to help businesses become more proficient and develop these ways of working, but actually it can be quite countercultural or counterintuitive. to the very purposes it's trying to mitigate against.

Al ElliottCan you just talk me through what the difference is between tribunal and mediation? And I've heard of another word, conciliation, I think. I don't really understand. Do they— are they on like a timeline? How are they different?

Roy MagaraSo, they mean different things in different contexts. So, the tribunal process is probably the easiest one to start off with. So, If for whatever reason negotiations or settlement discussions fail at that earlier point, then usually the employee has no choice but to take their particular complaint or grievance to an employment tribunal. And what that means is they'll initially get in touch with ACAS, who gives them a sort of unique number, I will call it eventually, that they then need to progress to an employment tribunal.

Al ElliottOkay.

Roy MagaraAnd once they do that, we are currently in a season of exceptional backlog with the Employment Tribunal. It might be a good couple of months before those pieces of paper, that notification hits the employer's desk, and they've then got 28 days to respond. And what that lifespan can look like can be anywhere between up to a year to, at the moment, there are final hearings being listed for 2029.

Al ElliottWow.

Roy MagaraAnd we're in September 2026. So it's an exceptionally long period of time sometimes where employers, employees have got to wait for that kind of closure. But ultimately that decision is going to be made by a judge who usually sits alone, or in some instances a panel. So usually a group of 3. So presided over by a judge who eventually make that decision as to whether the employee's claim or claims are going to succeed or not. And if they succeed, then more often than not, the employer has got to pay out a sum in compensation. Sometimes those claims are made public. So employers often have to juggle around sort of crisis PR and how they sustain that around confidentiality, around their own employees as well, who's to remain there, and juggling the morale of that too. So, The employment tribunal process has its place, and there are times where I say to an employer, this is worthwhile defending all the way through as opposed to settling for various reasons, or to employees, this is worthwhile going through with it as opposed to settling at this early point. But ultimately, it is often party— with parties who are entrenched, and it is often a very long, drawn-out process that drains much more than just finances. It drains time. It drains resources, it drains emotions. So it's certainly not for the faint-hearted is what I will say. Looking at mediation, that can come in 2 different forms. It can come in mediation in the tribunal process itself, where a judge may preside over both parties and try and find a way for both parties to come and settle. And I'll just leave it at that for the purposes of this. The other way that that can come in is in workplace mediation. And I personally am, I'm quite a growing fan of this, if I can call it, quite a proponent for it, because I often find in the lifespan of a business, it is much, in my view, more simpler, definitely cheaper to try and resolve a dispute at an early stage, or even if it's become entrenched at that stage, rather than deal with dismissals or grievances, then look at recruitment, what the cost of that is, what the cost of the team morale is, and the time.

Al ElliottYeah.

Roy MagaraSo workplace mediation is often where you have an external party who comes in, and it's not about who's right and who's wrong. It's about understanding where both parties see usually a common issue and how we can help the parties themselves talk about and get that resolution together. And more often than not, issues that have taken sometimes years of people's time. Often within 48 hours, can find a resolution where people's mindsets change. So in my view, I'm a great proponent of that. And then the other sphere that often comes around it is conciliation. I think you highlighted, and in lawyer speak, we often think about conciliation where ACAS may be involved. ACAS is a sort of intermediary organization whose one of its main focuses, particularly in the context of litigation, is to try and help parties settle. So they don't take sides. They're not about who's right or who's wrong per se, but they'll look to hear each other out. And they will look to sort of go around the sort of virtual email corridor between both parties or the telephone corridor and try and get both parties to think pragmatically and try and think about settlement. So that's where conciliation comes in. All have their pros and their cons. All have their strengths and weaknesses. All have their—

Leanne ElliottYeah.

Roy Magaratheir appropriate time and season, as it were.

Leanne ElliottI would imagine that the majority of people listening would also be interested in the idea of mediation, because it seems to me like having an actual conversation, having that facilitated by a third party, making sure it's fair, coming to a conclusion quicker. And I guess it just feels more human, right, to try and figure that out in In the moment. I think that's going to be my key takeaway, because I would imagine there's lots of founders that could access something like mediation a lot sooner in the process, and then have much fewer issues financially and business-wise down the line. But if there was one thing that you wanted to leave founders with, Roy, what do you think it would be? If they could do, maybe start doing something differently from Monday, what might that be?

Roy MagaraFirst of all, I'm with you on the mediation front. I think Dealing with things when they're seedlings is much bigger to deal with than they were huge trunks, which can come with a lot more damage later on. So I'm with you on the principle of that. To every founder listening, I, and I had to identify something, I would most likely say, identify the one people issue in your business. That everybody knows about, but no one's dealing with. And every business is different, but there almost always is at least one thing. So there might be, for example, 2 typical things I see. You've got the manager who's technically brilliant, but they're so toxic because of the problems they kind of bleed into their team. Or there's the employee whose performance has been discussed with everyone, but the actual employee themselves. Or there's the relationship between the 2 on the board, 2 senior people, and that is deteriorating in front of everyone, and no one is dealing with it. There are often people who are on sickness absence. There's sickness absence issues, and no one quite knows how to address it. I had an employer come to me, for example, who has someone who's been on sick leave for 2 years, on full pay, and not dealt with for whatever reason. And there are grievances that just linger on and everyone hopes that it'll disappear, but someone else has been suspended for at least 6 months yet and they're wondering what is going on here. Yeah, great, I'm being paid, but I'm just sat at home doing nothing. You've got the outdated contract that needs fixing. Everyone knows it needs fixing by though, but no one's dealing with it. So I think usually there is something that's been quietly deteriorating, quietly dying in the corner somewhere. There's been the elephant that spent far too long in the room that everyone is still kind of side-eyeing, but no one's actually kind of just dealing with. So I think identify it to get to the heart of your question, Leanne. Have that conversation, get whatever evidence you might need in order, understand the legal position if necessary. We talked about where it might be necessary or not necessary. And if you're about to do something significant, know where you stand before you act. More often than not, actually spending a couple of hundred pounds to be really informed and assured about a legal position is exceptionally better than getting that wrong and then spending tens of thousands further down the line. So I think that one habit, in my view, often prevents an extraordinary amount of litigation further down the line.

Al ElliottThat was the amazing Roy Magara. There's several things to take from this, but first of all, what a lovely voice. I feel like I could listen to that man forever.

Leanne ElliottMe too.

Al ElliottI want him to do some I worry for my job. If you take one thing from that story about the fake minutes, it's that the employer's paperwork did not protect them. In fact, it sank them. So here's what you should do on Monday. Don't skip this. I know, I'm a founder. This doesn't sound very interesting, but you need to do it.

Leanne ElliottNumber 1, a policy only protects you if someone follows it and you can prove it. A handbook sitting on a shared drive is worth nothing. Roy's employer client won a whistleblowing claim because they had clear policies, a clear decision maker, and dated documents that matched what they said happened. Then check who actually knows what happens next when someone raises a problem.

Al ElliottLesson 2, don't react. Do what Roy says, preserve, assess, plan. PAP, if you will. Keep every email, message, and record, and never rewrite history ever, ever. We all know that's not gone well in the past. Work out what actually happened before you decide what to do, and then decide who investigates, who hears it, and who hears the appeal. And that angry message you forwarded to a colleague, Roy says it can end up in front of a judge because anything with the employee's name on it can be requested. Also, scarily, Anything with their initials. Not great for someone called Helen Robinson or Christian Turner Oscar, HR and CTO.

Leanne ElliottAnd lesson 3, deal with the seedling. Most disputes start with something left unsaid. So ask yourself which one people problem in your business everyone knows about and nobody is dealing with. Have that conversation Now, today, if it's about to get serious, spending a couple of hundred pounds to know where you stand right now beats tens of thousands later.

Al ElliottIf you want to find out more, or today has got you worried about the potential issue, go to Magara Law right now. A few hundred pounds on a chat with one of their experts could save you thousands or tens of thousands or even hundreds of thousands in 2 years' time. His contact details and everything you need to know are in the show notes.

Leanne ElliottThis is Truth, Lies and Work. Work. We're back on Tuesday with another edition of This Week in Work, and it's going to be awesome.

Al ElliottSee you soon. Bye. Stay safe. Don't lie. Bye.