Tag Archives: disciplinary

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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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”!)

The Clarkson Affair – what small employers really need to know

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The suspension of TV presenter Jeremy Clarkson from Top Gear, after what’s been described as a “fracas” with his producer, has caused a huge amount of discussion, media comment and online debate. (If you’re one of my non-UK readers, or have been avoiding the news for the past week, here’s a summary of the story)

In adding to the already large amounts of discussion on this story, I’m aiming to provide a reminder for small organisations of the process for dealing with such a situation – while not all that common it happens more often than you may think.

Firstly, you need be clear to all staff about what behaviour is unacceptable. Most organisations would class fighting or physical assault as gross misconduct, which is likely to lead to dismissal without notice (people sometimes refer to this as “summary” or ” instant” dismissal – however as you have to undertake a proper process before dismissing, I avoid these terms as they imply that you make a knee-jerk decision). Many organisations would also class threatening verbal abuse as gross misconduct, especially if it has (as some versions of the story suggest) a racial element.

Even if you don’t classify it as gross misconduct, it’s unlikely to be acceptable behaviour and might well lead to disciplinary action – and if you have someone  already on a final warning (again, as Mr Clarkson apparently is), further disciplinary action is also likely to result in dismissal.

If you are considering gross misconduct, you should normally suspend the individual while you investigate matters. Someone’s job is at stake so it’s important that you talk to any witnesses or consider any supporting documentation. You may also want to talk to the individual themselves as part of the investigation although this isn’t always necessary. Make sure any meetings are documented. If your organisation is large enough, get someone to carry out the investigation who isn’t connected to the incident or who won’t be involved in the final decision.

At the end of the investigation, if there seem to be grounds for gross misconduct, call a disciplinary hearing and ensure the individual has access to all the allegations before the hearing. Remember, you must allow them to put forward their side of the story or any mitigating circumstances before you make the final decision.

And if you do dismiss, then the individual must be allowed an appeal, usually to someone not involved in the final decision – although in a very small organisation this isn’t always possible, but in this case you should allow the opportunity to request a review of the decision.

Without knowing all the ins and outs of the Clarkson case (we only have partial media reports), it does seem the BBC is doing things “correctly”, even if this upsets those who want to see Clarkson either back on TV or dismissed immediately. And it’s a reminder that no matter how valuable an individual employee is to the company, they aren’t above the normal standards of behaviour.

If your company needs help with handling a disciplinary case, why not get in touch?

(NB – some may point out that Clarkson is not a BBC employee but a freelance contractor. I understand that because of the large numbers of freelance contractors in the media industry, the BBC policy is to cover both employees and contractors. However, you don’t need to follow such a process with any freelance workers you use in your business, only those who are directly employed by you)

Updated 25/3/15

The decision has been made and it seems that not only have the BBC carried out a full and proper investigation of the issues, they’ve also carried out the process in a fortnight, which gives the lie to those who suggest that suspensions and investigations drag out things unnecessarily!