Category Archives: HR Tips for Business and Charities

What it says on the tin – some useful guidance for smaller organisations on HR and employment law topics

No, it’s not OK to call your boss a “Dickhead”

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The media had a field day last week with a story that an Employment Tribunal had ruled that being sacked for calling your boss a “Dickhead” was grounds for Unfair Dismissal. As always when it comes to the reporting of Employment Law stories, the old adage “never let the truth get in the way of a good story” applies here.

The case involved a Ms Herbert, who was sacked from the small construction business she worked for by its Operations Director.  He was also Ms Herbert’s brother in law, and was married to the Managing Director who was therefore her sister in law.

Most of the facts were disputed – included the date Ms Herbert was dismissed. The only consistent fact that everyone agreed on was that at some point in the meeting where she alleged she was dismissed, she used the words “fucking dickheads” to describe the Operations Director and his wife.

The reason she won her case was that the company made a complete pig’s ear of dealing with the situation. In fact pretty much everything they could have got wrong they did.

  • When the ‘dickheads’ comment was made, the Operations Director told Ms Herbert to ‘get out’ and that she was ‘sacked’
  • The company then tried to construct a case about Ms Herbert’s misconduct and hold a later disciplinary hearing on a series of alleged serious breaches of company rules. She refused to participate in this process on the basis that the company had already sacked her.
  • The context in which the comment was made was not enough to justify a gross misconduct dismissal – and therefore she was entitled to be paid notice. In fact their company policy said that use of ‘insulting and abusive language’ would only result in dismissal if a prior warning had been given.

There are three important takeaways for small businesses from this case – none of which are around what Ms Herbert said

  • Employment Tribunals deal with the facts in each individual case. This decision does not set a precedent in any way, and especially it doesn’t give a green light for employees to abuse their bosses without penalty.
  • To make a dismissal fair, you have to have a fair reason and follow a fair procedure. The judge did conclude that Ms Herbert’s behaviour could well have been a fair reason but the Operations Directors ‘spur of the moment’ decision was not in any way a fair process.
  • The case shows starkly how long the tribunal process is taking – the events of this case happened in 2022 but the decision was not published until last week. Regardless of who is right or wrong, having a claim that takes 3 years to resolve is not a sensible way to resolve employment disputes (and as this article shows, this is not an untypical timescale)

Rearranging The Desks

Rearranging The Desks

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One of the things that concerns many small businesses in relation to employment law is the issue of constructive dismissal. A perception has grown up around the concept that if a business makes any change that an employee doesn’t like, they can resign and take the company to a tribunal. This perception isn’t helped by stories like this from The Guardian, especially its clickbait headline “Senior staff can sue if given ‘low status’ desk, UK tribunal rules”

Of course, the headline isn’t true and the story is far more complex. But it’s a useful one to look at since it covers a lot of issues that a small business might face when dealing with a change.

Firstly, what is constructive dismissal? It’s the idea that an employer makes a significant detrimental change to an employee’s terms, conditions or position that the employee can consider that they have effectively been dismissed and resign on the spot. It is in many ways the reverse of gross misconduct, which is where an employee does something so serious that the employer considers that dismissal without notice is the appropriate solution.

In some situations, constructive dismissal can be triggered by the ‘final straw’ in a series of changes. That’s in part what happened in this case.

The claimant, a Mr Walker, was a manager of a branch of an estate agents. He was moved without discussion to a smaller branch and given – again without discussion – a revised pay package. To achieve a similar level of salary he would have to hit more demanding targets. A couple of months later, he was required to return to his original branch in what was termed a joint managerial role, but which required him to sit with the majority of staff in the main office rather than at the manager’s desk. He considered this to be a demotion and considered that it would be difficult and embarrassing to have to sit among staff he had formerly managed. When he raised this with his Director, the director dismissed his concerns with a comment that he couldn’t believe someone of Mr Walker’s age would make a fuss about a desk (there was some dispute about whether the Director swore in this conversation). Mr Walker considered this the final straw, and resigned claiming constructive dismissal.

There are three key learning points from this for small businesses:

  • If you are making a change which has a negative impact on someone – even if they are in a senior role – discuss and (where possible) agree the way forward. Don’t just impose it.
  • Consider your company culture. In some businesses, where people sit would not be an issue. But if status is conveyed by office location, type of desk or anything else, taking that away will clearly indicate to people in the organisation that the individual’s status has been downgraded.
  • The Estate Agents had an external HR adviser who gave advice on how to handle the situation. The advice was not necessarily incorrect but was based on partial information (what the Director thought was important for her to know) and as result made the situation worse. Always tell your HR adviser (for my clients that means me ) the full story, even the bits that you don’t think are valid.

Constructive dismissal is actually very rare (in a 40 year HR career I’ve dealt with 2 cases and I don’t think that I am unusual in that). But you can make it rarer still by following the steps above.

A businessman in a suit sitting in an office, looking concerned, with colleagues working at desks in the background.
The Law Trumps Soundbites

The Law Trumps Soundbites

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There’s been a lot of noise over the last few weeks, mainly as a result of actions of the new American president, about Diversity, Equality and Inclusion (DEI) programmes within business. It’s been compounded by some American business leaders talking about the need for more “masculine energy” in business (whatever that term means).

Even though the cultural and business contexts of the UK and the US are different, this hasn’t stopped much chatter amongst business commentators here about the future of DEI. So it’s probably worth going over what the situation is here, especially from the perspective of small business.

Firstly, outside of some public sector organisations and some very large corporates – often subsidiaries of US companies –  very few companies in the UK have DEI programmes in the US style.

What we do have in the UK though is the Equality Act 2010.  This hasn’t changed, isn’t going to change in the next 5 years at least, and sets down the basis under which all UK businesses have to act.

This Act makes it explicit that you cannot discriminate on the basis of a one of 9 “protected characteristics” (with some very limited exceptions). Every single person in the UK possesses at least two of these protected characteristics (most have more) so it covers everyone.

Discrimination can result in unlimited fines – and unlike most aspects of employment law, claims can be made against individuals as well as businesses.

Discrimination applies equally to so-called ‘positive discrimination’ – for example deliberately favouring a female candidate in preference to a man (because you think your business needs more female staff) is as forbidden as the reverse. In fact there have been recent employment tribunal cases that have reaffirmed this.

What the law does allow – on an entirely voluntary basis – is ‘positive action’.  You might for example run an engineering company where all your engineers are of a certain age group and you are struggling to find younger candidates interested in the job. Positive action might be running taster days for young engineers, or attending careers fairs aimed at school leavers or recent graduates. It doesn’t mean that a younger person is going to get the job ahead of an older person, simply that you are creating opportunities for younger people to meet your requirements. Which, if you are struggling for staff, is a business benefit. Some larger companies might run training schemes targeted specifically at under-represented groups – again this is perfectly permissible. None of this is new – firms have been doing this since the 1980s.

Regardless of your own views on DEI, or what you have read on social media or heard on the news, the situation in the UK hasn’t changed. There is no such thing as a ‘diversity hire’ in the UK, nor can you start advertising for ‘young men’ or rejecting candidates because of their race or religion.

Can I sack a rioter?

Can I sack a rioter?

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With the current unrest and racially motivated violence in many parts of the UK, which has resulted in many arrests and promises of ‘speedy justice’, employers may understandably want to dismiss any members of staff who are involved. The question is can they, without risking an unfair dismissal claim against them?

As with many Employment Law and HR related questions, the answer is “it depends”.

Firstly, if someone has less than 2 years’ service with you, the answer is yes – currently employees need to have worked for you for 2 years or more to make an unfair dismissal claim. Although this time limit is going to change at some point in the near future, that’s the position at the date of this post (and consequently those who are involved in the current issue).

If they have more than 2 years’ service, then you need to tread a little more carefully. Simply being arrested, or even charged, does not automatically give you the right to dismiss. You will need to investigate matters as far as possible, as you’ll need to show that the behaviour outside of work, even if criminal,  significantly affects your trust and confidence in the person as an employee.

Some of the questions you need to ask yourself are:

  • Does this behaviour prevent the employee from doing their job? If imprisoned – or remanded in custody for a prolonged period – then you would potentially have fair grounds for dismissal on the basis of capability.
  • Does the behaviour damage your business or organisational reputation? If the individual is a senior manager or is publicly associated with your company or ‘brand’ then this might be the case. You’re less likely to be able to justify it if the person is an ‘anonymous’ shop floor worker, unknown to the wider public
  • Does your existing disciplinary policy include criminal behaviour outside work as grounds for gross misconduct? While this doesn’t alleviate the need for an investigation in individual cases, it does strengthen your justification.
  • Can the individual continue to work with colleagues? If your business has a racially diverse workforce, co-workers may not want to work with someone convicted of racially motivated crimes. Again you will need to look at all the circumstances.
  • Does racially motivated behaviour breach organisational values or policies about diversity, equality and inclusion (DEI)? This may be a justification in some situations, but is more likely to be valid in a charity/not for profit organisation which has some aspect of DEI as part of its defined aims.

One thing you don’t need to worry about are claims that individual’s views are a ‘protected belief’. Political views are not automatically protected (there are some limited legal protections which wouldn’t apply here) and racist views are extremely unlikely to pass the legal tests of ‘protected belief’.  Nor are there human rights issues – the right to freedom of expression is a qualified one, which means it can restricted to protect public safety or the prevention of crime.

It’s not surprising that many employers would not want people involved in the current riots working for them. But it’s important to avoid a knee-jerk reaction. As with many HR issues, taking the time to do things properly will protect your business in the long run.

(It may seem an odd comparison, but the way the BBC handled the recent case of disgraced ex-newsreader Huw Edwards might be a useful approach to take in many situations)

Important: This post is for general advice and information and neither the author or Ariadne Associates cannot be held liable if you take action based solely on the contents of this document. If you need advice on an individual case, please contact us or seek professional legal advice

Private Investigations

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The current (at the time of writing) allegations against an unnamed (again at the time of writing) BBC Presenter have caused a media frenzy and plenty of speculation, while also showing up some of the vagaries of media law.  This post is not to discuss the specific issues in this case (we don’t know them and only have partial media reports about what has or hasn’t happened). But there are also plenty of employment law and HR issues that need to be considered when dealing with serious allegations against a member of staff.

The first of these is that if an allegation of this type is made, the organisation should respond to it immediately – but that this should be the start of an investigation process into what has happened, not jumping to conclusions. If the incidents have happened outside work this can make the process even more complicated. Even where things seem a little more clear-cut, a proper investigation may take a couple of weeks, even in a small business – as witnesses may need to be spoken to, meetings noted and documents reviewed, and a final report produced.

If the matter appears to involve something that may be criminal in nature, the organisation will probably want to involve the police. In my experience, the police will respond to such issues in one of two ways

  • They will suggest that there appears to be nothing to the issue from a criminal perspective and advise you to simply proceed in accordance with your internal procedures. In some cases they may ask you to report back with your findings in case further information means they need to rethink this, or
  • They will ask you to pause any internal process while their own enquiries are made, so as not to prejudice (or warn individuals about) the police investigation.

You may want to suspend the member of staff while the investigation is ongoing. In the past this was assumed to be automatic in cases where serious allegations were made. However, recent Tribunal cases have suggested that suspension should be considered as one possible option and if there are other, less draconian possibilities – such as moving the employee to a different location – these should be looked at.

You also have a duty of care to the individual who has been accused of the alleged offence, as well as any others who may be involved. This means keeping details confidential within the investigation and certainly not making any public commentary until matters are concluded.  This applies even when the organisation is a high-profile publicly funded body like the BBC (regardless of any additional media law implications).

In this case, if the BBC have known about the allegations against a staff member for over 7 weeks and not done anything until the news story broke last week, then they could be accused of failing to respond to the issues (and it wouldn’t be the first time that they have made basic HR mistakes). If however, they have been investigating but needed time to do so thoroughly (and may have had to wait for the ‘green light’ from the police first) then 7 weeks in not necessarily an unusual period for a disciplinary investigation. The fact that the Director-General of the BBC does not appear to be in possession of the full facts is also not unusual – he might need to be involved in a subsequent disciplinary hearing and so should only find out the detail when the investigation is completed.

The BBC has employment law responsibilities – these may be inconvenient for certain sections of the media and for those who like to speculate on social media, but it doesn’t mean that the organisation can ignore them. If you are an employer in this situation, the same responsibilities apply to you, regardless of any external pressure. You are the one who will face the unfair dismissal (or worse) claim with its financial consequences for your business if you don’t do things in a correct way.

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