Tag Archives: race

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

Babylon makes the rules

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34 years ago, a Post Office Graduate Trainee (let’s call him Simon) was sent to produce a management report on ‘why are there so few black posties in Liverpool?’*  This was only a few years after the 1981 riots, and public sector organisations and large employers were being encouraged to take action on Equal Opportunities, specifically on race at that time. The Commission for Racial Equality had produced a new code of practice on recruitment and the Post Office had then incorporated it into a new set of rules that had to be followed.

Despite the fact that the rules had been in place for almost 2 years, Liverpool, unlike some other areas, had not seen any change at all in its employee profile, which was particularly odd since the majority of the City’s black community lived within a mile or so of the main sorting office.

When I got to the Liverpool office and sat down with the recruitment team, it appeared they were following all relevant processes correctly. Staff had been trained in interviewing and there were full ‘audit trails’ from advert to appointment. There was a definite lack of enthusiasm among line managers, who found the new processes slow and bureaucratic (even by Post Office standards) at a time when they were being particularly pressured about postal performance, but they accepted that the rules were ones they had to follow. The problem, everyone agreed at the office, was that “we don’t discriminate but they just don’t apply.”

Being young and keen, and fired up with the righteous zeal of someone who’d had a Rock Against Racism badge as a teenager and owned albums by the Tom Robinson Band and Linton Kwesi Johnson, I decided to try to find out why this was. So I arranged an interview with an organisation called South Liverpool Personnel, an employment agency set up after the riots to promote job opportunities to people in Liverpool 8.

They very kindly spent an hour or so answering my naïve questions about what the Post Office did and what it could do around its recruitment processes. But the answer to the key question of why people weren’t applying was both simple and devastating. The problem was that the Post Office was seen as part of the system – there were too many people in the community who had experienced overt or covert racism at the hands of key public institutions in the city and there was a complete lack of trust as a result. Moreover, there was no sense in which the Post Office was trying to show it had changed – the black community would not go to it until the organisation made an effort to go to them.

I completed my report; got a pat on the back from the Graduate Trainee co-ordinator and was thanked by the Head of Personnel in Liverpool, who said he’d consider my recommendations ‘very seriously’. When I returned to work permanently in Liverpool, about 18 months later, I found that one recommendation had been implemented – vacancies were notified to South Liverpool Personnel at the same time as they were sent to Job Centres. The idea of trying to communicate and connect with the local community, or understand their concerns, hadn’t been taken up.

The point of this post is not to have a pop at the Post Office, it’s a reminder to the mostly white HR profession that if we are serious about challenging years of ingrained prejudice it won’t be solved by changing a few procedures, running a few unconscious bias courses and doing a bit more “ethnic monitoring”. Unless we look at radical changes to the culture of our organisations, listen to what different communities are saying and act on that – and are prepared to make this a long term project, not the current flavour of the month – in 34 years’ time people are likely to be still having the same conversation.

*The proper title was something like “A review of recruitment and Equal Opportunities in the Liverpool Head Post Office area”, but you get the point.

Time to ditch the Equal Opps questionnaire?

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Some months ago I was working with a client on a recruitment project, and they provided me a copy of their “Equal Opportunities Monitoring Form”. It was certainly a comprehensive document, covering as it did around 20 different definitions of ethnic origin, a dozen major world religions, an option to declare if your birth gender was different to your current gender and five options for sexual orientation. In line with good practice the form carried a declaration that it was not part of the selection process and would be detached from the individual’s application; it was anonymous and every question had a “prefer not to say” option.

This sort of form is pretty common throughout HR departments – certainly in the UK – and it is, in my experience, genuinely used for the stated purpose, i.e. simply monitoring applications to ensure that the organisation is attracting candidates from all sections of the community. But something about it left me feeling uneasy and wondering why we are really doing this. While I have had conversations in the past about why so few women are applying for a particular role or that the company seems to have an issue attracting candidates from a minority ethnic group despite being based in an area which has a high population, I can honestly say that I’ve never had a discussion about “this vacancy seems to be attracting a large number of transgender candidates – I wonder why that is?” or “We’re not getting many Sikh applicants, do you think we’ve got a problem?”

Now that could be that as a profession we’re just not as aware of discrimination when it doesn’t involve race or sex. But it could also point to the fact that we are operating simply as data collectors in order to tick a box (and indeed in the traditional risk-averse HR way, storing the information purely as insurance against a discrimination claim: “Us – discriminatory? We’ve had 17 lesbians apply in the last 6 months”)

But my main sense of unease is the intrusive nature of the questions. We talk a lot about candidate experience and trust in employment relationships. Yet for many individuals, one of their first contacts with a potential employer is to be asked a lot of extremely personal questions – and then to believe that someone they have never met will keep their stated promise that “this information doesn’t form part of the selection process”.

Of course, without the information, organisations won’t necessarily know if we do have a problem in recruitment. But is there a better way to do it? One that better balances the company’s requirements without the need to pry into personal information that we admit is of no relevance to the role we’re recruiting for. I don’t have an answer – do you?