Tag Archives: disciplinary

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.

close up shot of a smartphone screen
Photo by Brett Jordan on Pexels.com

Woolly Bully

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Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.

Sexual Harassment in the Workplace

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With increasing numbers of accusations of sexual harassment (and worse) being made, and several high profile figures seeing their reputation and career vanish overnight, many smaller businesses are concerned how they should deal with an allegation if it should occur in their own organisation.

I was recently asked to contribute an article to Arts Professional magazine on how to handle claims of sexual harassment. Although it’s written specifically for arts organisations, the points are generally applicable to all small organisations, whatever their sector. You can find it here

I’d welcome any comments or queries when you’ve read it – if you have a situation where you need specific advice please get in touch

Time to Drop Discipline?

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In HR, we love to update our terms. After all, we even renamed ourselves “Human Resources” because “Personnel” sounded a bit old fashioned. And the names of things we do is forever changing – we don’t recruit, we acquire talent; we don’t induct new employees, we onboard them; we don’t train them, we develop them; and while we once did appraisals we now do performance reviews.

Now some of these are actually sensible and reflect a different mindset for the modern workplace – others are however just an attempt to sound hip and trendy. But one term persists – and to my mind it is the one that should have been cast into the dustbin of HR history many years ago.

I refer of course to Discipline –  a word that the Oxford Dictionary defines as “the practice of training people to obey rules or a code of behaviour, using punishment to correct disobedience”. Surely no word harks back more to the outdated command and control management style that goes back to FW Taylor and the pre-war years? So why do we – and indeed other professionals in the area such as ACAS – persist with the term?

It may be because the same term is used in the US, since the UK tends to follow American terminology about a decade later. Or it may be that we’re all closet Taylorists, believing that staff will attempt to get away with anything without a good dose of corrective sanctions. Or even because it allows HR people to get involved in something that sounds quasi-judicial and stop line managers from getting it “wrong”.

I’m intrigued to know – why do we still use Discipline? And what term should we replace it with? (A final warning for anyone who suggests “Inappropriate Employee Behaviour Modification Procedure”!)