Tag Archives: misconduct

How Do You Handle Employee Suspension? Part Two – What Happens Next?

Posted on by

In a previous blog, which you can read here, we looked at how best to handle suspending an employee. There are certain principles that you need to consider, before you can move on to other considerations. We’ll cover these in this blog.

The Length of Suspension

In line with the Acas code of Practice on disciplinary and grievance procedures, the period of suspension should be kept as brief as possible, and its continuance kept under review. Where possible, you should tell your employee how long the suspension is expected to last, and update them as to the progress of the investigation and any delays. The suspension should be lifted immediately if the circumstances of the case no longer justify it.

Pay and Benefits

Your employee should be fully paid during a period of suspension, unless there is a clear contractual right to the contrary. All other benefits should also continue unless the contract states otherwise.

The Risk of Constructive Dismissal

If you impose an unjustified period of suspension, this may amount to a breach of the implied term of trust and confidence, entitling your employee to resign and claim constructive unfair dismissal. Whether or not you are in breach of this implied term will depend on the circumstances of the particular case. Suspension of an employee may put you at risk of such a claim if, for example:

  • the suspension is imposed without reasonable and proper cause
  • it is imposed in an unreasonable way
  • the suspension is unpaid, in the absence of a contractual right for it to be without pay
  • there is an unnecessarily protracted period of suspension
  • the employee who is suspended is permanently replaced.

The Conclusion of the Investigation

On completion of the investigation, you must decide whether or not there is sufficient evidence to justify disciplinary action. If there is, you should follow your disciplinary procedure and the Acas code of Practice as soon as you can. It may be appropriate for you to keep your employee suspended until the disciplinary procedure is complete if the circumstances still justify it.

If no disciplinary action is needed, you should lift the suspension and ask your employee to return to work without delay. It may be that they feel aggrieved by the period of suspension, so it is advisable for you to have a return-to-work meeting to enable your employee to discuss any concerns that they may have and allow you to address these concerns. You should assure your employee that the period of suspension has not affected their position, or continued employment, and that they will not suffer any future detriment as a result of the suspension.

As with any tricky situation with a member of staff, if you have any concerns about the best course of action to take, please get in touch with me for some confidential advice, before taking any action. It is vital that you follow correct procedures. Call me on 0118 940 3032 or email sueferguson@optionshr.co.uk.

How Do You Handle Employee Suspension? Part One – Practice and Principles

Posted on by

In cases of alleged misconduct by one of your employees, in order to ensure that any dismissal is fair, you should investigate the matter to determine whether or not disciplinary action is necessary. The fairness of the dismissal depends on whether or not there is a fair reason for dismissal and, in the circumstances, whether or not you, as the employer, acted reasonably in treating it as a sufficient reason for dismissal. How you investigate the matter will be relevant to whether or not you acted reasonably.

In some cases, it may be appropriate for you to suspend an employee from work pending the completion of the investigation. However, given the serious implications of suspension for an employee, including for his or her morale and professional reputation, you must ensure that the circumstances of the case justify it, and that it is necessary to ensure a fair investigation. Suspension will not be necessary in every case.

The Acas code of Practice

The Acas code of practice on disciplinary and grievance procedures provides practical guidance on dealing with disciplinary and grievance issues in the workplace. The code states that employers should pay a suspended employee during the period of suspension, keep the suspension as brief as possible and keep the suspension under review. You should make clear that the suspension is not disciplinary action in itself.

The non-statutory guidance that accompanies the code says that suspension may be necessary, for example:

  • where relationships have broken down
  • in cases of gross misconduct
  • where there is a risk to an employee or company property, or responsibilities to other parties, or
  • in exceptional cases, where there are reasonable grounds to suspect that evidence has been tampered with or destroyed, or witnesses pressurised.

General Principles

While it is preferable for you to have a contractual right to suspend an employee, where the circumstances justify it, you can still suspend without one. You should ensure that the employee suffers no detriment as a result of its decision to suspend, and as such, the employee should be fully paid and benefit from the same terms and conditions of employment throughout the suspension.

If the contract of employment contains a procedure that applies to the suspension of an employee, you should ensure that you comply with it, as a failure to do so may enable the employee to claim breach of contract, and/or to resign and claim constructive unfair dismissal.

As an employer, you should not suspend an employee without just cause. It is not appropriate to suspend simply because investigative enquiries are being made, where the particular circumstances don’t require it. If it is necessary to remove the employee from, for example, contact with particular colleagues or clients, you should consider if suspension can be avoided by using a less drastic measure, for example a temporary change to the employee’s duties or department.

Where the circumstances of a case justify suspension, you should advise the employee of the reason for the suspension, how long it is likely to last, and that it is a neutral act that does not indicate guilt. You should make clear to the employee that the suspension is not disciplinary action in itself, and that disciplinary action will not necessarily follow.

You should also aim to keep the suspension and the reason for it confidential, so as not to cause damage to the employee’s reputation, particularly as the investigation will not necessarily result in disciplinary action. Where it is necessary to explain the employee’s absence, you may consider discussing with the employee how he or she would like this to be communicated to clients and colleagues; this may be appropriate particularly if the employee holds a senior position. Where the employee’s colleagues are aware of the suspension and/or the disciplinary issue, for example if they are witnesses or involved in the investigatory process, you should explain that the suspension is a precautionary measure while the matter is being investigated, and that it will not necessarily result in disciplinary action. Employees should be encouraged to treat the matter as confidential. You may wish to provide managers with a statement confirming how to respond to queries relating to the suspended employee’s absence, to ensure that a consistent message is communicated.

Think that you might need to suspend one of your employees? Call me first, before you do anything! We can discuss the situation in complete confidence, to help you make the best decision. Call me now on 0118 940 3032.

Handling Difficult Conversations – Part One

Posted on by

Difficult conversations with employees are part of a line manager’s role.

Any conversation that you would rather not have can result in you expecting it to be a difficult one. However, issues need to be dealt with before they escalate into more serious problems, so in this series of blogs we’ll look at how best to handle them.

Issues that managers find difficult to raise with employees include:

  • delivering bad news, such as confirmation that an employee is being dismissed
  • providing feedback on performance
  • raising an issue of misconduct
  • raising the issue of an employee’s personal hygiene
  • addressing a conflict between colleagues
  • acknowledging that the line manager was wrong and the employee was right.

What happens if you ignore the issue?

Failing to have a conversation to address the issue could have a number of potentially serious consequences:

  • The issue may interfere with your own work
  • If an issue of poor performance or misconduct is left unchecked, the employee may think that the situation is acceptable
  • Failing to address issues of poor performance or misconduct will make it more difficult for you to impose a disciplinary sanction at a later date
  • If left unresolved the issue may cause productivity problems for the individual, the team and the organisation
  • If the issue that needs to be addressed is the employee’s failure to pull his or her weight, failing to address it may cause problems with the employee’s colleagues who may have to pick up the individual’s slack
  • A loss of respect for you as a manager and the organisation as a whole can develop.

Once you have decided to address the issue by having a conversation with the individual, you should conduct it in an appropriate manner so that both parties use the situation to maximum benefit. There are five key areas that you should consider.

1. Preparation

Effective preparation for the meeting will help you get across what you want to say without losing sight of the objective. There are several strands to effective preparation:

  • Investigate the issue before the meeting to be able to provide evidence
  • Decide what the ideal outcome of the conversation would be
  • Think carefully about the differences between your character and that of your employee. You could adapt your style of doing things to assist with understanding and acceptance of the message by your employee.
  • Think about your frame of mind before having the conversation
  • Concentrate on the issue rather than the individual

You should prepare any materials that may be needed for the meeting, including extra copies of documents for the employee. You can also practise what you are going to say, particularly any opening statement or questions.

A difficult conversation should always be conducted in private so that neither the line manager nor the employee is embarrassed and so that you both feel that they can speak freely. You should allow sufficient time to enable proper discussion.

2. Communication

It is important for you to communicate the issue clearly, so that there are no misunderstandings. You must also put the message across in a way that is constructive, even though the information may seem negative.

Set the right tone: begin the conversation in a professional manner as this will encourage a professional attitude throughout the meeting and help to achieve a successful outcome.

State the issues clearly: To avoid misunderstanding, state clearly what the issue is. Praise or positive comments can be useful, but you should not let this cloud the message that you need to impart.

Put the issue in context: Demonstrate why the issue is important.

Give specific examples and evidence: If the message that needs to be imparted is that the employee has been refused a request for flexible working, it helps if you can give specific examples of why the request cannot be accommodated.

Focus on the issue, not the person: Avoid expressing your opinion about the employee. This can be done by sticking to the facts and avoiding generalisations and comments on the individual’s personality.

Avoid an attitude of blame: The issue needs to be addressed in a collaborative way. Managers should not approach a conversation with an attitude of ‘line manager versus the employee, but with an attitude of ‘both versus the problem’.

Avoid belittling the issue: Your own fear of a difficult conversation could lead you to belittle the issue. Avoid phrases such as “this won’t take long”, “it’s really not a big deal” and “I’m sure you’re aware of what I’ll be saying”.

Be positive: Managers should be bold and state that they want a successful outcome to the meeting. This will give a constructive tone and feel to the conversation even if the news seems bad. It also helps if you use positive words, such as “improvement” and “achievement”, rather than negative words, such as “failure” and “weakness”.

Body language: Be aware of your own body language so that it does not alienate the employee. Your attitude will usually be replicated by the employee.

There is a lot more to getting through difficult conversations with employees, including listening, exploring the issue and agreeing the next action, which we’ll cover in the next blog in this series.

If you need some help now with handling difficult conversations, contact us now and we can provide you with some free, impartial advice, to help you get started. Call us on 0118 940 3032 or click here to email me.

Source: Xperthr

Managing the Malingerer

Posted on by

Managing sickness absence is always difficult and dealing with someone who you suspect is not genuinely ill has always been trickier. You might have seen it happen and had your suspicions, but how to you prove that the sickness was not genuine? It’s not easy, so here are some suggestions to help you.

Step 1: Identify and assess potential evidence

The first step is to identify and record available evidence to support your suspicions.

If you have evidence that one of your employees is being dishonest by claiming to be off sick when he or she is not, you may be able to discipline them or even dismiss them for misconduct.

Mere suspicions and rumours will not be enough to show misconduct. However, social media has the potential to provide a good source of possible evidence. If you are presented with evidence from social media, perhaps from another employee, you can use it in the same way as you would any other anecdotal evidence or an employee tip-off.

The credibility of the evidence retrieved from social media will need to be tested in the usual way. Has the information been taken out of context and are the dates of posting accurate?

There is debate over whether social media posts are in the public domain or private, in which case, your employee could argue that this breaches their right to privacy. However, interference with the right to privacy can be objectively justified and might be permissible if you have reasonable grounds to believe that your employee is fraudulently claiming sick pay.

In general, as an employer, you should be able to rely on such evidence, but each case would need to be assessed on its own merits and ‘fishing’ exercises are never advisable.

Step 2: Review the evidence

If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.

A lack of evidence of dishonesty does not mean that you cannot challenge an employee you suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.

You can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage your line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.

Step 3: Give evidence of misconduct

If you believe you have evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.

An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed. It is still important to carry out an investigation, as you would for any other allegation of misconduct.

How do you spot malingerers?

Some of the signs include patterns of absence, such as the same day each week; triggers for absence, such as being invited to a disciplinary meeting; reluctance to provide medical evidence or attend appointments; posts on social media; tip-offs from colleagues and reports of activities that seem inconsistent with ill-health, such as undertaking other work or going on holiday.

Step 4: Remember to follow your procedures

Before disciplining or dismissing the malingering employee for misconduct, you must follow your own procedures and the Acas ‘Code on discipline and grievance’, as you would do in any other disciplinary scenario.

You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation and medical evidence may be needed.

You must also consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.

Make sure you follow this process any time you are unsure of how ill an employee really is. If in doubt about how to handle such a situation, contact us by calling 0118 940 3032 or clicking here to email us and we’ll help you through it.

The 12 Days of Christmas

Posted on by

On the first day of Christmas, my HR Consultant gave to me, a Contract in a pear tree. Make sure that you have up to date contracts for all your employees.

 

 

 

 

 

On the second day of Christmas, my HR Consultant gave to me, two boxing gloves. Don’t go picking a fight with your employees just because they don’t do what you want them to do. Learn to manage them properly!

 

 

 

 

On the third day of Christmas, my HR Consultant gave to me, three French Hens. If you have employees from Europe, keep an eye on our blog for news of how Brexit could affect your employees and your business.

 

 

 

 

On the fourth day of Christmas, my HR Consultant gave to me, four dreaded words. “You have been fired!” Before you rush to sack anyone, check to make sure you have a good reason and make sure you do it properly.

 

 

 

 

 

On the fifth day of Christmas, my HR Consultant gave to me, five golden things. Here are the five stages of HR that your business will go through.

 

 

 

 

 

On the sixth day of Christmas, my HR Consultant gave to me, six staff-a-laying. Keep your employees delivering all those golden eggs, to the best of their ability, by looking for ways to develop them and their performance.

 

 

 

 

On the seventh day of Christmas, my HR Consultant gave to me, seven swans-a-swimming. If, like a swan, you’re all grace and elegance above water, while below you’re frantically paddling to keep afloat of all things HR, just get in touch to see how we can help.

 

 

 

 

On the eighth day of Christmas, my HR Consultant gave to me, eight maids-a-milking. Except that these days, you have to let the men do the milking too, if they want to! You’re not allowed to discriminate. Acas can help you create a fair workplace.

 

 

 

 

On the ninth day of Christmas, my HR Consultant gave to me, nine ladies dancing. And the men can dance too!

 

 

 

 

 

On the tenth day of Christmas, my HR Consultant gave to me, ten lords (and ladies) leaping at the Christmas party. Make sure you lay down a few rules for proper behaviour, so that things don’t get out of hand.

 

 

 

 

On the eleventh day of Christmas, my HR Consultant gave to me, eleven pipers piping. Make a big noise when your staff do a great job. Look for the best way to reward them.

 

 

 

 

 

On the twelfth day of Christmas, my HR Consultant gave to me, twelve drummers drumming. I keep drumming good HR practices into my clients’ businesses, to help them grow successful companies that are great places to work.

 

 

 

Merry Christmas …

And have a stress free New Year with lots of happy, productive employees!

Save

Save

Save

Save

Save

Save

Save

Top Five Employment Law Cases in 2016 (So Far!)

Posted on by

Here are the top five employment law cases of 2016 so far, some of which have fairly far reaching implications.

Commission and holiday pay – Lock and another v British Gas Trading Ltd (No.2) (EAT)

This Employment Appeal Tribunal (EAT) agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.

The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.

Childcare vouchers during maternity leave – Peninsula Business Services Ltd v Donaldson (EAT)

HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.

Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.

Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.

An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.

Monitoring employees’ social media – Barbulescu v Romania (ECHR)

In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.

An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.

However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.

This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.

Misconduct dismissal for “pulling a sickie” – Metroline West Ltd v Ajaj (EAT)

The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.

This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

Reasonable adjustments for disabled people – Carreras v United First Partners Research (EAT)

When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.

In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.

In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.

In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.

If you think any of these issues could affect your business, do get in touch with us. Call us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

On 18 October 2016 we’ll be running our next Employment Law Update workshop, to bring you right up to speed on any changes that might affect your business. You can book your place online here.

 

Source: XpertHR

One in Five Employees ‘Regularly’ Uses Drugs

Posted on by

One in five UK employees admits to regularly taking drugs, and a third suspect that a colleague may have a drug problem, according to new research that suggests the increase in the use of illegal substances may be starting to make itself felt in the workplace.

The study of 500 employers, from Crossland Employment Solicitors, found that just two in five firms (40%) have a drugs policy, and only 23 per cent have tested their staff for drug use.

However employers must have ‘good reason’ to justify testing their employees for drug use. Because of the intrusive nature of drug testing, you must have a good reason to justify a policy of testing staff, and should always consider whether there is a less intrusive means of monitoring employees.

As an employer you also need to exercise caution when dealing with employees who they suspect of using drugs. It is vital that you have a ‘sensible’ drug misuse policy in place. Under the Health and Safety at Work Act 1974, employers have a duty to ensure a safe place of work for their staff. With respect to substance misuse, this should include having clear rules about coming to work under the influence of alcohol or drugs, and about drinking alcohol or taking drugs while at work.

The Crossland figures are higher than official estimates of drug use. A Home Office survey in 2015 found that 19.4% of 15 to 24-year-olds had taken an illegal substance over the previous 12 months, and 7.6% had used a Class A drug. The Global Drugs Survey 2015 found that 31% of the UK population as a whole had used drugs at least once.

According to Crossland’s survey, 45% of employees who use drugs feel it has affected their work performance. A similar proportion (46%) say they are aware of potential disciplinary action for substance abuse, but another 35% are unsure of the exact grounds and consequences of their actions.

In view of your Health and Safety obligations, as an employer you are able to take action to deal with employees who use drugs outside of work in certain circumstances. If you need any advice on this issue, or dealing with your own employees, please contact us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

How Do You Handle Unauthorised Absence?

Posted on by

Occasionally you might find yourself faced with a situation where one of your employees is absent from work without explanation and without permission. They simply fail to turn up for work. The absence might be for just a day or two or – in the worst case – you might never see them again. What can you do about it? How should you handle unauthorised absence?

Contacting your Employee

The starting point is for you to try to make contact with you employee by telephone on the first day of unauthorised absence, to find out why they have failed to turn up for work. Logs of all attempts at contact should be kept, whether these are messages left on an answer phone or with relatives or flat mates, or whether there has simply been no answer when the employee’s telephone number is rung. Remember to call landlines as well as mobile numbers, if you have them.

If your attempts to contact your employee are unsuccessful, it is recommended that you contact the employee’s stated emergency contacts – usually parents or siblings, spouse/civil partner or partner.

If nothing has been heard from the employee by the second day of unauthorised absence, you should step up your attempts at contact, by writing to advise the employee that they have failed to attend work on the relevant dates and have not provided any reason for non-attendance. You should cite the previous attempts to contact the employee in your letter, and ask the employee to make contact with you by a set date, to confirm their position. Allowing a couple of days for contact should be sufficient. The employee should also be advised that unauthorised absence without good cause is a serious disciplinary offence, which may, depending on the circumstances, amount to potential gross misconduct.

Assumed Resignations

Some employers state in their letter that the employee’s conduct in failing to attend work implies that they intend to, or have, resigned; if they fail to make contact by the stated deadline, it can be assumed that this is the case and appropriate action can be taken. Do note, however, that for a resignation to be implied by conduct, at the very least you must make enquiries and warn your employee of your intentions.

It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In most cases, the contract of employment does not end until you accept the employee’s breach of contract in failing to attend work, by actually dismissing them. This is because tribunals will generally hold that the withdrawal of labour and the failure to contact the employer are not of themselves enough for a resignation. Rather, the employee must have actually communicated an intention to resign to the employer.

Given that it is likely that a tribunal will hold that an assumed resignation is in fact a dismissal, as the employer, you should incorporate your normal disciplinary procedure into this process. This will involve writing to the employee to invite them to a meeting to discuss the unauthorised absence, setting out the possible consequences of this behaviour. Of course, if the employee has failed to reply to the unauthorised absence letters, it is highly likely that they will fail to turn up for the disciplinary meeting and will not provide any reason as to why they could not attend. This means that the meeting will probably go ahead in the employee’s absence and that they will then be notified of the outcome in writing and given a right of appeal.

Disciplinary Action

In many cases, you’ll be able to make contact with your employee and they return to work. When this happens, you should promptly investigate and ask the employee for a proper explanation at a return to work interview. If there are no acceptable reasons for the absence, the matter should be treated as a conduct issue and dealt with in accordance with your disciplinary procedure. Even if the employee says that they were sick, they will need to explain why no contact was made with you, as required by your company sickness absence reporting procedure. An investigation might well turn up the fact that the sickness absence was not genuine, and there may still be a disciplinary case to answer.

Unauthorised leave can lead to a fair dismissal, especially where a prior warning makes the consequences of the absence quite clear and the absence is for longer than a day or so.

Unauthorised Holidays

You may become aware in advance that an employee plans to take unauthorised holiday. This is most often connected with holiday requests that you legitimately turn down, but when the employee tells you that they are taking the time off anyway, because a holiday or flight has already been booked.

Where an employee has a holiday request turned down, you should write to them confirming the legal position. Even if you choose not to do this for all declined holiday requests, as a minimum, you should do it if you subsequently find out that an employee plans to take the time off work anyway. The employee may tell you this directly – often in a fit of temper – or you may hear it from another member of staff.

The letter to the employee should state that their holiday request for the relevant dates was declined and set out the reasons why. It should go on to say that, if the employee does still take the time off, not only will they not be paid for it but it will also constitute unauthorised absence. The letter should make it clear that unauthorised absence is a very serious disciplinary offence amounting to potential gross misconduct and that the employee will be at risk of summary dismissal on return from the holiday. You should finish by inviting the employee to reconsider their position in light of the possible consequences.

If the employee ignores the letter and goes on holiday, on their return you should invite them to a formal disciplinary hearing to discuss the matter. Don’t try to hold this meeting in the employee’s absence, given that you already know that they would be unable to attend. Instead, suspend the employee on the day that they return and set up the disciplinary hearing for a few days later. Assuming that a fair disciplinary procedure is followed and that you had legitimate reasons for turning down the employee’s annual leave request, a dismissal on these grounds is likely to be fair.

As with all disciplinary and dismissal issues, make sure that you have a proper process in place and that you follow it to the letter. If you don’t have a procedure for dealing with unauthorised absence or any other staff issues, get in touch and we’ll talk about how we can help you set up the processes that you need.

If you have any questions about how to handle unauthorised absence, contact me straight away by calling 0118 940 3032 or by clicking here to email me.

Dealing with Bullying or Harassment at Work

Posted on by

Recently we looked at the case of one of my clients who had learnt about sexual harassment happening within their company. Click here to see that blog again, or if you missed it. Fortunately that case was successfully resolved, but if ever you need to go to the next stage with such a case, here is how you should deal with it.

Following investigatory meetings, which you must carry out, and assuming that you decide that there is a case to be answered, a formal disciplinary interview should be set up with the person accused of bullying or harassment. This should be done in writing, with your employee being given a full written account of the evidence gathered against them, including the evidence reported by any witnesses. Whether or not it will be appropriate to state the names of any witnesses will depend on the circumstances.

At the same time, the employee should be given notice to attend the interview and informed of their right to be accompanied by a colleague or trade union official. It is essential to provide the accused employee with all the relevant facts at this stage, so that they have a proper opportunity to defend themselves when the interview takes place.

Ask and Listen

At the interview, you should ask open questions, i.e. those beginning with “what”, “which”, “why”, “how”, “where”, “when” and “who”, in order to get the employee’s side of the story. You should listen carefully to what they have to say, and take on board their explanations and any mitigating factors.

The purpose of the interview will be to establish whether or not there are proper grounds for taking disciplinary action against the employee and, if there are, what level of disciplinary action would be appropriate. This will depend on whether or not, following the interview, you have reasonable grounds for forming a genuine belief that incidents of harassment or bullying did in fact occur.

There is no need for you to have absolute proof of the employee’s ‘guilt’ in order to proceed with disciplinary action or dismissal, as long as you have, following a thorough investigation, formed a genuine and reasonable belief that incidents of bullying or harassment took place.

Deal with it Promptly

Depending on the seriousness of the behaviour, disciplinary action may range from a verbal warning to summary dismissal. In cases of mild harassment, for example a single incident that was based on a misunderstanding, or a series of minor incidents where an employee genuinely did not realise that there were causing offence, a sincere apology, together with an undertaking not to repeat the offending behaviour, may be appropriate.

If the outcome is a formal warning or dismissal, the employee should be granted the right of appeal against that decision, to someone who was not involved in either the investigation or the decision to impose the disciplinary sanction. If a warning is given, it should make it very clear that any further incidents of bullying or harassment of any kind will be viewed very seriously and will lead to further formal disciplinary action.

Both the employee who raised the complaint and the employee accused of bullying or harassment should be given written feedback on the outcome and any actions agreed once the proceedings have been concluded. Full confidential records should be kept of all complaints, all interviews conducted and the outcome of the proceedings.

The main aim of any formal action will be to make sure that the harassment or bullying stops immediately and does not recur. This means that you should treat any report of harassment or bullying seriously and deal with it immediately.

I hope that you never have to deal with a situation like this in your business. However, if you are worried about harassment or bullying – either a case that needs to be dealt with, or how to prevent it from happening – please contact me straight away by calling 0118 940 3032 or by clicking here to email me.

Your Clients vs Your Employees – Whose Side Do You Take?

Posted on by

When your important client refuses to have one of your employees back at its office, as the employer, you naturally have to take steps to protect the commercial interests of your company and maintain a good business relationship with your client. At the same time, you have to balance the employment rights of your employee.

What are the legal issues?

If your first response is to dismiss your employee, without taking any steps to find a solution or take account of any injustice to the employee, there will be a substantial risk of a successful unfair dismissal claim. However, the tribunals recognise the difficulties for employers where there is third-party pressure to dismiss, coming from an important client. You must act reasonably before reaching a decision to dismiss.

What’s the nature of the problem?

The first step is for you to find out the reason why the client has objected to your employee, to see if the problem can be resolved. In some instances the reason may be perfectly clear. For example, there may have been an incident of misconduct at the client’s office, or an argument between the employee and senior personnel at the client’s workplace. In other instances it may be less clear: the client might disapprove of a particular working practice, which the employee could be asked to modify or correct to the client’s satisfaction.

Even where the situation is serious, a tribunal is likely to want to know that, as the employer, you have taken steps to resolve the issue. You will therefore need to have a written record of your discussions with your client. If possible, you should also have in writing from the client, their objections to your employee. Even though you may not be in a position to establish the truth of the client’s allegations, and you may not agree with the client’s actions, the commercial pressure may still provide sufficient grounds for a fair dismissal on grounds of some other substantial reason.

What about injustice to your employee?

If your client is adamant that they will have nothing further to do with your employee, you must consider what injustice might be caused to the employee when deciding whether or not to dismiss. Factors to take into consideration would include length of service and how satisfactory that service has been to date.

Alternatives to dismissal should be explored as this will help to address any injustice to the employee. If there has been a conduct issue at the client’s workplace, you will need to follow its disciplinary procedure. Clearly, where gross misconduct is proved within those disciplinary proceedings, you will have conduct as the reason for dismissal and need not rely on some other substantial reason.

Check your employee’s contract

You have more chance of a fair dismissal due to client pressure if the employee has been warned that the client may intervene to have him or her removed. It is not unusual for commercial contracts to include a clause that says that a client may ask a supplier to remove any employee whom the client considers unsuitable. On induction, employees should be informed of the importance of maintaining good working relations with the client and of the client’s right to insist on removal of employees, if it says so in their contract.

So whose side do you take? It will depend on each individual situation, which you must handle carefully, considering all the specific details, before you reach any decision. Listen to both sides of the case and seek to find a solution that suits all the parties – you as the employer, your employee and your client.