Tag Archives: employment law

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

Billion Dollar Brain

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Over the last few days, Elon Musk’s takeover of Twitter and the ensuing announcement of mass redundancies has been in the news, with mostly negative headlines. Businesses often restructure and reduce staff numbers after a takeover or other major ownership changes, so what (apart from the reputation of Mr Musk) makes this one particularly newsworthy?

Firstly, unlike the recent P&O case where the employer took a deliberate decision to break the law, it’s become clear as more news has emerged that this is more cock-up than conspiracy.  Twitter seem to have taken the view that the approach to redundancy in the US would apply throughout the world without any reference to local employment laws or expectations.

In the UK for example, there is a duty to consult staff in advance of redundancies taking effect, with specified time limits when more than 20 redundancies are planned. There’s also a requirement to notify the Government (via the Insolvency Service) of redundancies at the same time. It appears from reports that Twitter announced the mass redundancies and then realised they needed to consult so are hastily trying to put together consultative arrangements. However, consultation must also be meaningful, and it’s hard to see how it could be so in this case if the decisions have already been made.

Secondly, the method of announcing the decision was crude and arbitrary – staff seem to have found out in advance of a formal announcement when they were locked out of work email and social media channels (as another example of the US-centric nature of the exercise, announcements were made at 9am California Time – after the end of the working day for most of Europe and at the end of it for the UK)

Thirdly, it now appears that at least some of the people who were made redundant are actually needed by the company, with a number being asked to return. Having been treated in such a manner, it’s unlikely that many will.

It’s a salutary lesson that even if you are a ‘successful billionaire tech business person’ you can still make major mistakes – and ones that play havoc with people’s lives. It’s little surprise that goodwill towards the company is in short supply.

If you do need to consider redundancy in the UK, and sadly they are a fact of life for many businesses at one time or another, remember these key points.

  1. Think carefully and plan where and when redundancies need to be made, allowing for consultation and other periods – including legal minimum timescales
  2. Remember your legal obligation – in the UK – is to avoid redundancy if you can so give thought to possible redeployment of affected staff
  3. Inform staff face to face if you can, but if that is not possible then an email explaining the situation and the reasons for redundancy
  4. Your decision will have a major impact on people’s lives – bear that in mind and show some empathy for what they are going through. And don’t expect people to always behave ‘rationally’ in the circumstances. (Even if you don’t have any fellow feeling for specific individuals, remember that other staff in your business will be watching how you treat their colleagues and their subsequent goodwill may depend on how you deal with the situation)
  5. Make sure you know what people are entitled to in terms of notice and redundancy pay, and pay them promptly after their employment ends.

The restructuring of Twitter is proving to be something of a case study in how not to reduce your workforce. And while Elon Musk has bottomless pockets which will allow him to buy his way out of employment litigation, most businesses don’t, so make sure you do it right!

HR’s Donald Trump moment?

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There has been a view for many years that the UK is governed by what has been termed the “Good chaps” theory of government – that there are certain unwritten rules and conventions that are understood by all parties and which everyone works within, even if there is profound disagreement on the issue at hand. Some commentators argue that this has disappeared in recent years as certain politicians have wilfully disregarded these understandings in order to gain a particular advantage or objective. (It was also in evidence in the Donald Trump years in the US, where Trump would say or do things that shocked people, not necessarily by their intent or outcome but the fact that he said or did them at all)

The world of work in the UK had a similar Trump type moment yesterday when P&O Ferries announced via Zoom that they were sacking 800 UK crew immediately and intended to replace them with cheaper foreign staff via an agency. Much of the shock and anger from politicians, HR professionals and others was not so much around the decision (other companies in the past have announced far bigger changes or lay-offs) but the fact that they did so in a way in which broke all the unwritten rules of employment relations in the UK. Even if they can legally do something in a particular way, most companies would approach a decision like this with an understanding of how they would be expected to behave.

P&O are not the first company to break these norms – in fact it has always gone on, even in the days when trade unions were stronger. But they are a high profile well-established ‘household’ name and consequently the expectation would be that they would do things ‘properly’.

An example of Donald Trump breaking the political norms by making personal comments about rival John McCain

What P&O have also done is shown how weak UK employment law is in protecting employees from an employer determined to behave in this manner. They will have factored in not only the cost of 800 potential unfair dismissal claims (all of which they are likely to lose) but also the fact that it will take 18 months -2 years before a tribunal hearing takes place (and even then they could refuse to pay, meaning individuals would have to take further legal action to enforce their claims). By which time many  ex-employees will have given up and the news story will have died down.

So what is to be done? More, and/or stronger employment law is the cry from certain sections. But as has been pointed out when there is a call for the UK to have a written constitution to resolve the reliance on ‘good chaps’, this wouldn’t solve all the problems – and would take time to go through parliament.

A better solutions, in my view,  would be for existing laws to be more easily applied – not only by tribunals being made faster and their judgments more easily enforced, but by the use of a properly funded statutory body similar to the Health and Safety Executive) with powers to hold bad employers to account. We already have a pretty impotent “Director of Labour Market Enforcement” within the Civil Service so the basic structure is there.

But also, HR professionals need to stop living in their unitarist utopia and accept that there is a need to recognise that employees often want different outcomes from their employment relationship. And so we need to be more open to negotiation , compromise and the role of trade unions or other employee representatives. That means going back to the ‘good chaps’ theory of employee relations, that there are unwritten rules that we all follow. P&O may be a particularly egregious example but they are in many respects the ‘tip of the iceberg’ for modern HR and business practices.

Should Home Workers be paid less than their Office Based colleagues?

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A classic newspaper QTWTAIN (Question to which the answer is No), following reports in today’s newspapers in which an unnamed government minister suggested that civil servants who work from home should be paid less than those who come to the office. Given the speed with which policy U-turns take place, the Business Secretary has now said  a few hours later that this will not happen.

However, as I’ve seen similar arguments advanced in other business magazines, notably in the US, it’s worth thinking through the logic of this argument from a business, ethical and legal perspective.

The business arguments seem to be two-fold.

Firstly, people working from home are not commuting so are therefore saving money. Consequently they don’t need as much salary.

However, this fails to consider that people working at home will have higher utility bills (heating etc) and in many cases are expected to pay for their own office furniture, IT equipment, and other associated costs. So the net effect may be far less, even if you ignore the bigger question of what salary is paid for.

Secondly, it is suggested that people who work from home aren’t as productive or as willing to put in extra effort as those who attend the office. Setting aside the fact that I’ve yet to see any research or evidence to support this point, it starts from the assumption that people only “work hard” if they are closely supervised and will “slack” if they aren’t. Yet many jobs today (wherever they happen to be based) don’t require that level of micromanagement because they are task or outcome based – performance is measured on results rather than whether someone is sat at a workstation for 8 hours.

Ethically and legally, it is very difficult for a business to justify paying staff who do the same job in different locations (home or office) at a different rate, and since it’s still the case that a majority of home-based staff are women an employer who thinks of doing this is leaving themselves open to Equal Pay and Sex Discrimination claims.

The legal process for reducing someone’s pay is also a difficult and time-consuming one for an employer. Contractual changes need to be consulted on and if an employee doesn’t agree then businesses are left in the legally-fraught ‘fire and rehire’ scenario. Even if you get away with this legally, cutting people’s pay is far more likely to demotivate them and affect their productivity.

There are big issues for businesses who may be trapped in long-term leases for warehousing or office space they no longer require, as well as those businesses (such as coffee shops and sandwich bars) which are set up to service office workers who may no longer exist. This also leads to a broader policy debate about what our city centres and business districts can or should be there for, if their current purpose is no longer required. But that falls outside the remit of an HR blog post, although I might respectfully suggest it is something government ministers might want to pay more attention to.