Private Investigations

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

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!

Come on In, The Water’s Lovely!

Yesterday I attended the Social HR Conference run by the CIPD in Manchester. There were lots of great learning points but one thing that struck me repeatedly were the reasons put forward by (often frustrated) HR people as to why their companies wouldn’t embrace “social media”, as they are often the reasons some of my clients also state. So I thought I’d challenge a few.

“People will do stupid things on it and we’ll end up sacking them”

Yes, some employees do stupid things sometimes – they always have done and always will do. Some of them will do it on a social media forum. But if someone doing something daft on social media leads to a disciplinary problem, then, to quote Pets At Home HR Director Ryan Cheyne, you have a problem with an employee – not with social media.

“People will just waste time on it”

Some people waste time at work no matter what. They might take overlong fag or tea breaks, wander around telling jokes to colleagues or discussing last night’s Eastenders. Again, if someone isn’t achieving their work targets, tackle it as a performance problem like any other. But…

…the time you think they are wasting might be being spent finding out the answer to a problem quickly and cheaply, getting some useful ideas on good practice from their contacts, or even finding out some information or knowledge on a competitor or a new opportunity.

“It might be ok for professionals and techies, but we employ manual workers/truck drivers/cleaners”

And you think that your manual workers don’t have Smartphones or Facebook accounts? Even if they don’t use them in work it doesn’t mean they can’t or don’t have them. Some companies adopt technology earlier than others but in the end we all do. One interesting learning point for me yesterday was that there is a huge online community of people who discuss knitting and crochet, and (while I accept this is a total stereotype) you wouldn’t normally associate people with those hobbies with the cutting edge of technology

“People might get a bad impression of the company”

People have always moaned about their employer and things they don’t like. But if you’re perceived as a poor employer, word always gets round. Social media just gets it round faster. And with the onset of sites like Glassdoor, it’s going to happen whether you “forbid” it or not.

Look at Friends Reunited and Myspace – they were just passing fads

Individual sites may come and go (there are some suggestions that Facebook may soon fall out of favour, while the end of LinkedIn has been prophesied regularly) but the means of communicating via internet or mobile technology will be around for a long while.

What’s its ROI?

As Mervyn Dinnen pointed out at yesterday’s conference, this is the “killer” argument used by those who just don’t want to do something. After all, how many companies measure the ROI of talking (and listening) to their employees, making new business connections or of providing mobile phones?

For a small organisation, the benefits of using social media more seem overwhelming – a cheap and easy way to promote your business and services, a chance to get immediate customer and employee feedback and an opportunity to “punch above your weight” against bigger competitors. In the same way that we now expect a company to have a website and an email address, there’ll be an expectation from your employees and customers in the future that you’re in social in some way. Thinking it will go away or ignoring it is not the right strategy.