In a recent blog post, I set out the reasons that an employer could dismiss an employee under the ‘dismissal for some other substantial reason’ (SOSR) clause. There, I went into detail about how to manage an awkward situation where a third party – usually an important client – states that they no longer want one of your employees on their site. Click here to read it again, or if you missed it.
In this month’s blog, I’m focusing on the problem of when employees refuse to work with colleagues.
Refusal to Work with Colleagues
In most walks of life, we’re free to choose our friends. But at work, we have little influence on who we work with. Often, there’s no issue – even when employees don’t like each other, they usually tolerate one another. But when a group of employees refuse to continue working with one of their colleagues, what can you do?
Reasons why employees might refuse to work with a colleague include:
- Serious personality clashes
- Discovering their colleague is HIV positive
- An employee becoming ‘socially unacceptable’, e.g. by having objectionable behaviour, or criminal convictions or charges, e.g. child pornography or sexual offences
As soon as you’re informed of a situation, don’t delay! Act early to stop a minor problem escalating into a situation where dismissal is demanded. Investigate what is behind the breakdown in relationships by interviewing and taking statements from all the relevant parties. From that, try to persuade the employees to patch up their differences, taking whatever constructive measures necessary to alleviate the situation. Depending on the breakdown reason, measures may involve allaying concerns or fears, and even arranging an education programme, for example where the objections centre around an employee being HIV positive.
Try not to be easily swayed by employee pressure, particularly if the allegations are based on groundless prejudice, are unreasonable or are a complete overreaction. You may even have to consider disciplining the protesters if their actions amount to bullying or harassment of the employee in question. This may not feel like a palatable option as this could lead to even further disruption of the workforce, but you need to protect your business interests, and widespread disruption is bound to be a threat to profitability and customer relations.
Where employees’ objections are well founded, it may be appropriate for the employee with whom the problem has arisen to be disciplined if the issue is misconduct or offensive behaviour. The fact that you are tackling the issue may be sufficient to calm the situation down and appease your staff.
Employee Pressure to Dismiss
Dismissal from employee pressure should always be a last resort. If all the steps taken to alleviate the situation and improve work relations hasn’t worked, and the breakdown is clearly irreversible, then it may be possible to dismiss the employee on SOSR grounds.
Remember that the reason for dismissal must be substantial. So if disruption amongst the employees is seriously harming your business, then you have no choice but to dismiss. A tribunal will want to see evidence pointing to an ultimatum having been served on the employer by the employees. Often, employees will use the ‘It’s him or us’ pressure tactic, which should be sufficient if the relationship breakdown can be reasonably assessed as irremediable. However, this conclusion can only be reached after you have taken all reasonable steps, short of dismissal, to improve the situation.
If the relationship breakdown only affects two employees, it’s much more difficult to successfully plead SOSR as fair reason for dismissal as this situation is unlikely to be deemed ‘substantial’.
If all your attempts to improve relations are unsuccessful and the reason for dismissal is indeed substantial, an employment tribunal will explore whether the dismissal of the employee was reasonable in all circumstances. The tribunal will consider whether the objections of the workforce were reasonable, or whether they were motivated by malice or blind prejudice, making the dismissal an injustice to the employee. Unfairness to the employee is an essential part of the equation.
The tribunal will also explore your conduct and the procedure you went through to reach the decision to dismiss. Part of that procedure is considering whether the employee can be given alternative work, or be relocated to another workplace, with his or her agreement.
If your staff are pressurising to dismiss an employee who is HIV positive, usually because of fear of infection, you will need to take the necessary action to counteract what is unwarranted prejudice, and to protect the employee from bullying and harassment. Allay groundless fears by educating staff about the transmission of HIV and the fact that it imposes no risk to others from normal work or social contact. Remember that an HIV positive person is automatically deemed to have a disability under the Equality Act 2010. Therefore, you risk a disability discrimination claim and a claim for unfair dismissal if you dismiss an HIV-positive employee from staff pressure. As HIV disproportionately affects gay and bisexual men, you also risk a sexual orientation discrimination claim. It’s essential that you protect the employee from harassment by colleagues, which may involve taking disciplinary action against the employee’s colleagues.
If efforts to consult with staff to allay their fears fail, it may be appropriate to transfer the employee to alternative employment, with his or her agreement, rather than considering dismissal.
Employment Law Update Workshop
Join us at our next Employment Law Update Workshop on 25 October 2018 for just £20 +VAT. Click here to book your place online. Come along and ask all your HR questions!