The Clarkson Affair – what small employers really need to know

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!

When Love Breaks Down

Listeners to radio soap The Archers (of which I am one) have been following for the last few weeks the ongoing affair between Elizabeth Pargetter, owner of Lower Loxley, a stately home now used as a Conference venue, and her general manager, Roy Tucker. In true soap opera fashion, Roy’s wife Hayley also works at Lower Loxley, as nanny/childminder to Elizabeth’s children. The affair ended with Elizabeth – much to Roy’s dismay – not only finishing their relationship but suggesting that Roy find another job.

Workplace relationships are an area that can be fraught for any employer, but particularly small ones where key staff can blur the boundaries between the professional and the personal. It’s not that they are uncommon either – it’s estimated that a significant proportion of personal relationships start in work (some even say a majority). Handling the breakdown of a relationship, especially between a “boss” and a “subordinate” can create many problems for a business.

Could Elizabeth sack Roy? Although she was very careful to say initially that she was not doing so, she might well have legitimate grounds for dismissal, under what is known as “some other substantial reason”. By giving Roy a period of paid leave of absence – often known as gardening leave – she’s making it clear that they can no longer work together. However, her subsequent actions of offering Roy’s job to his temporary replacement before finalising matters with him, and failing to follow any sort of process, have given him grounds for a claim of unfair dismissal (leaving aside the issue of whether he could afford to bring a claim). In practice, this is exactly the sort of situation that an employer and employee should try to resolve via a Settlement Agreement – a confidential and legally binding agreement to end an employment relationship – thus avoiding both embarrassing publicity for the business and personal information being made public.

But what about Hayley? Would Elizabeth and she be able to maintain a working relationship, especially as Hayley has now discovered the true reason for Roy’s late nights at the office? Again, Elizabeth might be able to use the “some other substantial reason” argument for dismissing her, but I suspect her case would be much weaker unless Hayley started behaving in an inappropriate manner. Hayley herself has quite understandably stated that she doesn’t really want to work with Elizabeth in the future. Here once again, a settlement agreement might be the logical way forward, unless Hayley resigns in a fit of pique.

Whatever happens – and at the time of writing it remains an unresolved issue – it will be an expensive fling for all concerned. And while The Archers is fiction, the consequences are likely to be the same if something like this happened in your business. It’s a worthwhile reminder of what the “Human” in Human Resources really means.

Zero Hours Contracts – the symptom, not the problem

Every so often people get into a “moral panic” and become fixated on a “bad thing”, about which “something” must be done. In HR/Employment Law the current “bad thing” is zero hours’ contracts.
These are employment contracts that don’t provided any guarantee to the employee of any number of hours per week. Hours can vary and in some cases the individual may not be required in any particular week – hence the Zero Hours name.
Various politicians have in recent weeks queued up to suggest reforms – from banning “exclusivity clauses” (i.e. ones which prevent an employee on a zero hours contract from working for someone else) to forcing employers to give a guaranteed number of hours after the individual has worked for them for 12 months. As a number of employment lawyers and other commentators have noted, both of these are easy for unscrupulous employers to get round if they want to.
It’s worth remembering that current estimates in the UK of people work under zero hours contracts vary from 600000 to 1.4 million. Out of a total workforce of 30 million, even at the upper end that’s less than 5%. And not all of those are unhappy with the arrangement – some surveys show that the majority who have them are happy to work under a “zero hours” contract.
As is often the case, those who are critical of these contracts are focusing on the symptom not the cause. There are two issues. Firstly, in a labour market during a recession, employers have plenty of staff to choose from so can drive costs down (wages can’t fall below minimum wage, so terms and conditions go instead). Once the economy picks up, individuals will move to more secure employment if they wish and employers will either face constant turnover of staff or have to improve their offering. It’s all about the balance of power in the employment relationship.
And secondly, our expectations as consumers are forcing employers to adopt these more flexible practices. Fancy a book from Amazon for next day delivery? Moan about the fact your train is cancelled because the driver is off sick? Expect not to wait in Costa for your coffee even though 20 of you have turned up at once? Companies don’t have banks of staff hanging around on the “off-chance” that there might be a surge in demand, but our expectation that our order will be fulfilled immediately means they need to be able to call on people at short notice for varying hours.
One very good example of this is a charity I’ve worked with who provide a personal shopper service for the elderly and housebound. They don’t know if Mrs Smith will need her groceries on a Tuesday or a Thursday, or not at all in a particular week. Hence the staff are employed under zero hours contracts by the charity.
Whatever the legal employment framework, “bad” employers will always bend the rules to their advantage and exploit individuals. One of the current mantras in HR is “don’t make rules for the 95% of decent employees based on the bad behaviour of 5%”. The same should apply to the legal restrictions on employers.