A Reasonable Companion

In a dispute – who accompanies the employee?

In the choppy seas of ever changing case law and employment legislation, our beacon as HR practitioners is often the safe haven of the ACAS Code of Practice. Shock horror then to learn that one aspect of the ACAS Code has been expressly disapplied by the EAT. Continue Reading

Mind What You Say

Whatever the size of the companies we support, when it comes to employee problems there is a definite trend. On the whole, our helpline enquiries relate to misconduct issues, poor performance or intermittent persistent absence. Do any of these sound familiar?

In most cases the problem can be resolved and everyone lives happily ever after (until the next appraisal), but a small proportion of cases will ultimately end in dismissal. What we can never know at the outset is which cases will go all the way.

With that in mind, it is crucial that we follow a fair process in handling every case – not just because it gives us the best chance of resolving the problem, but also because if this is the case that’s going to end in dismissal, we need to make sure it’s a fair one.

For the ultimate dismissal to be fair, we must have followed the appropriate process that relates to the type of problem – misconduct, poor performance or persistent absence.

Misconduct describes behaviour that is blameworthy, for example, knowing the rules but breaking them anyway. In contrast poor performance, when this is caused by a lack of capability, or poor attendance when a colleague is genuinely ill, are not blameworthy.

The process that a company follows to manage these three big issues are usually fairly similar; an escalating series of warnings that a) make an employee aware of the problem and b) support them in trying to improve the situation – but the tone should be very different.

The process for managing blameworthy behaviour is the disciplinary procedure. The language used in all the letters, emails and warnings communicating with the employee can reflect that we are talking about an incident that we feel they are culpable for. This is the relatively straight forward one.

Capability and frequent absence tends to be where companies come a cropper. If we want to argue later down the line (read ‘Tribunal‘) that the reason for dismissal was one of the non-blameworthy ones such as ‘capability’ for poor performance or ‘some other substantial reason’ for frequent absences, all the correspondence that has gone before needs to support this.

If, in correspondence about an employee’s frequent absences, we have gone on about how they are letting the team down, or given them a guilt trip about the impact of their absences, or warned them they must improve – we are effectively suggesting that they are in control of their actions and the absences are blameworthy. With a paper trail of evidence to this effect, it would be tricky to try to argue the dismissal was for a non-blameworthy reason such as ‘some other substantial reason’.

I appreciate this may sound like inconsequential gobbledygook but the bottom line is that getting this wrong can land you with an unfair dismissal. If we say we dismissed for capability and a Tribunal decides the real reason for our actions was misconduct (we thought they were bunking off work when not really sick), we lose.

The golden rule is to decide what the real issue is up front – genuine frequent sickness absence or willful malingering – then ensure our language and tone at meetings and in all our written correspondence is consistent with the underlying view of blame or no blame.

Suspension – Is It A Knee-Jerk Reaction?

Are you jumping the gun and suspending your employees too soon when allegations of misconduct arise?

It is common practice for employers to automatically suspend employees if they are being investigated (or disciplined) for acts of serious misconduct.  This common practice is based on an understanding that if an “accused” employee is not suspended, this would seriously weaken an employer’s  case for a sound dismissal, if it got that far.

Recent case law, however, has questioned this knee-jerk reaction to serious acts of misconduct.  Employers are expected to consider carefully whether or not suspension during the disciplinary process is appropriate.

If suspension is an automatic response to serious allegations it could leave you trying to defend an unfair (or constructive unfair) dismissal claim for breach of trust and confidence because arguably such action could cause damage to an employee”s reputation and wellbeing.

Employers are expected to consider what alternative measures, if any, should be taken before imposing suspension on an employee.    Alternative measures could include temporarily relocating the employee, moving them to a different shift pattern or assigning different duties that remove the possibility of any further misconduct occurring whilst the current matter is dealt with.   Any dgfev online casino alternative measures should only be taken with the employee’s agreement and should not be imposed.

When deciding whether to suspend or not, the focus should be on whether there is a real risk that the conduct in question will be repeated and/or whether there is a threat to the integrity of the investigatory process.

In some circumstances, it may be necessary to suspend an employee for a short period pending the outcome of the investigation.  However, this should be as brief as possible and should be kept under review.  The employee should be kept up to date with how the investigation is progressing, the anticipated time frame and re-assurance should be given that suspension is not considered a disciplinary action.

The type of factors to consider when deciding whether to suspend or not include:

• Have working relationships broken down?
• Is it serious misconduct?  And if it were proven, could it result in summary dismissal?
• Do you think the employee might deliberately cause damage if he/she remains in the workplace?
• Do you think their presence in the workplace might prejudice the investigation in some way?
• Has the employee acted in a violent manner or threatened violence?
• Has the employee been accused of serious bullying or harassment?
• Is the matter being investigated highly sensitive?

A decision to suspend an employee should be taken only after careful consideration of all the circumstances and the employee should be provided with an explanation as to why suspension was considered necessary.

Party Poopers – Organising a Christmas Do?

Did you know that an organized ‘work event’ taking place outside of the normal place of work and/or hours is generally seen as an extension of work?  This means that the employer is likely to have the same legal responsibility.

The pitfalls can be avoided (or at least reduced) with careful planning and communication with the team. Continue Reading