Employment practices liability claims still originate from familiar allegations, but what's changed is how complicated they've become, according to Alex Ilkos (pictured), client executive, professional services, at Purves Redmond Limited. A straightforward, performance-related termination can now evolve into a claim involving several different allegations at once, making it harder for employers and their brokers to establish exactly what happened.
"They still stem from fairly traditional allegations. Wrongful termination, discrimination, harassment are still relevant," Ilkos said. "But I'd say the biggest change today versus in the past is the complexity around the allegations."
What starts as a straightforward, performance-based dismissal in an employer's eyes can develop into a much broader claim, according to Ilkos. A single termination that seems clear-cut on its face can end up involving several different allegations layered together, he said, potentially including discrimination, reprisal, or a failure to accommodate, each one adding its own layer to what the employer initially saw as a simple decision.
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Retaliation claims in particular are becoming more frequent, according to Ilkos, who said he's seeing them come up more often now than in the past.
He illustrated the pattern with an example: an employee raises a sexual harassment complaint, nothing formal comes of it, and the employee is dismissed for performance issues months later.
"Let's say it was a sexual harassment issue. You complain about it, nothing happens," Ilkos said. "And then a couple of months later, you're let go for alleged performance issues."
Even when there's a legitimate basis for the dismissal, Ilkos said, the claim itself can still involve a retaliation element, layered together with sexual harassment and wrongful termination allegations, which is exactly what makes these cases so complicated to untangle.
Brokers can't see everything happening inside a client's business, according to Ilkos, since that level of detail is inherently internal to each organization. Understanding a client well largely comes down to learning the business as thoroughly as possible, he said, though that's genuinely difficult given how much of it stays internal to the company itself.
What a broker can assess, he said, is how well-documented that business actually is.
"I think the biggest thing we can see from the outside that is helpful is strong documentation," Ilkos said. "The more information we have, the more documentation, the more procedures in place, anything like that, the easier it is to find the root cause of what happened."
Returning to his earlier example, Ilkos said the absence or presence of documentation can change how a retaliation allegation actually reads.
"If you don't document events, then it looks really bad, and it probably is bad," Ilkos said. "But if you had clearly documented performance issues for a year, two years before that, there might still be a claim stating there's a retaliation for that sexual harassment complaint, but maybe the actual termination of that employee was warranted because of performance issues. We won't really know if you don't document your side very well."
Ilkos said that documentation doesn't guarantee a favourable outcome, but it consistently narrows how contested a claim becomes.
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"Even in the case where you should lose, you're still making it a lot less complex claim, and a lot less costly defence," Ilkos said.
From a broker's side, Ilkos said what he wants to see is thorough documentation, solid procedures, and a strong HR team in place, since those are the things visible from the outside and exactly where he'd direct his recommendations.
That distinction matters more as claims stack multiple allegations onto a single dispute. Where documentation used to settle a narrower question, whether a specific termination was justified, it now has to hold up across several overlapping threads at once, each one potentially argued separately by opposing counsel.
