Blog posts tagged discrimination

Employees behaving badly: Part 2

If there’s a case to be answered….

If further action is necessary, the employee should be asked, in writing, to attend a disciplinary meeting on a specified time and date. The letter should set out clearly the allegation(s), consequences if the complaint is upheld (i.e. the imposition of sanctions, including dismissal if necessary) and either (a) a formal warning (b) some other form of disciplinary action may be issued or (c) a warning or other disciplinary action is to be confirmed (such as at an appeal hearing). The employer should tell the employee they are allowed to be accompanied by a union rep or colleague at the meeting. Evidence, including witness statements, should normally be given to the employee in advance of the meeting.

The right to be accompanied at the disciplinary meeting does not extend to being accompanied at investigatory meetings and nor does it confer the right to be accompanied by a lawyer (although recent case law suggests this may be changing). If an employer dismisses an employee for either asking to be accompanied, or for being the companion to an investigated employee, that dismissal will automatically be unfair.

All allegations should be discussed carefully and the employee allowed to put their case. Notes of the meeting should be taken by a dedicated note taker. This meeting should be held without undue delay, but allow the employee sufficient time to prepare their case and, where possible, should be conducted by someone other than the person who investigated the complaint. The companion may not answer direct questions but can help sum up the employee’s views.

Once the meeting has concluded the employer needs to carefully consider whether disciplinary action is justified, being careful to avoid taking a decision that might be viewed as discriminatory, arbitrary or inconsistent. In many cases employees will argue that the disciplinary action taken against them was unfair because another employee in similar circumstances was treated differently.

The Code requires that an employee be given the right to appeal against any disciplinary finding made and, usually, the employee will have to submit their appeal within a fairly short period of time - often five working days. The disciplinary sanction imposed will depend upon the circumstances of the case. In serious cases (aka gross misconduct) such as dishonesty, summary dismissal may be appropriate. Other, less serious cases, might require the imposition of a warning. Where the employee is found to have been underperforming he/she should be given realistic targets over a reasonable time frame for improvement. Many disciplinary policies will provide hierarchy of warnings - Oral, First, Final, then Dismissal. To terminate an underperforming employee can, therefore, be a lengthy process. Even in cases of gross misconduct the proper process should be followed, even if the employee “banged to rights”.

Where the employee is dismissed the employer should communicate the decision promptly and confirm the date of termination. Dismissal for gross misconduct means that the employee is only entitled to be paid their salary and contractual benefits up to the date of termination, which will usually be the date that the employer reaches its decision that the complaint is upheld. There is usually no obligation on the employer to pay or make the employee serve notice in cases of summary dismissal, unless the employer is ordered to do so by an Employment Tribunal or Court if the employee sues.

For some employers the above will make sobering reading and employers would be well advised to take legal advice before commencing the disciplinary process. The Employment law landscape is complex and beset by many pitfalls. Always take legal advice from a specialist before taking action. Finally, before hankering for the days when employees could be sent to prison for insubordination or wishing for the right to flog the underperforming salesman pour encourager les autres just think, it could be worse: how long will it be before children start demanding dispute resolution procedures at home? Acas for children? Perish the thought. 

• Top of page

Are you ready for the Equality Act? 1 October sees a huge change in UK law – but will it affect your firm?

Big changes to business law come into force twice a year – in April and October. 1 October sees employment law changing yet again – the minimum wage is going up, and the Equality Act kicks in.

If you’re a manager battling hard times the last thing you need is more law, but you’ll be pleased to hear that this round of law changes might end up making your life more straightforward. The key new law, the Equality Act, harmonises the current muddlesome raft of equality and diversity legislation into one single set of rules.

Although the Act is a huge piece of legislation, there won't be any major changes to employee rights. However, you should bear in mind that various types of bad business behaviour have now been specifically made unlawful:

• associative discrimination: when a worker is treated badly because they associate with another person who possesses a ‘protected characteristic’ (such as disability)
• harassment by a third party: employers could now be liable for harassment of their staff by people they don’t employ themselves, such as customers
• indirect discrimination: which could occur when you have an in-house policy that applies to everyone but in practice disadvantages a group of workers.

The Act also makes various changes to victimisation and harassment rules. There aren’t any changes to maternity/parental leave rights at the moment, although some legislation may appear for April 2011.

Even if this doesn’t affect you right now, you may want to cast an eye over your HR policies to get rid of mentions of old rules – law like the Disability Discrimination Act will no longer exist (although its obligations do). Acas has produced a crystal-clear one-page chart that sets out – in glorious technicolour - all the employer’s responsibilities under the Act.

Changes to the the national minimum wage (NMW) are even more straightforward – all the rates increase a little, and there is a new rate for any apprentices you have. From 1 October, you should pay your NMW staff:

• £5.93 an hour to workers aged 21 and over
• £4.92 an hour to workers aged 18-20
• £3.64 an hour to workers aged 16-18

The main rate - £5.93 – now applies to workers aged 21-plus (was 22-plus). Apprentices - who previously didn’t qualify - should now be paid at least £2.50 an hour if they are under 19, or 19 and over and in their first apprenticeship year.

And that’s it – some businesses in the pub trade, recruitment agencies and modeling agencies will need to tweak their working practices, but overall, this CCD is, mercifully, legislation-light for small firms.

• Top of page

Over-refreshed and misbehaving: the World Cup in the workplace

The quadrennial jamboree that is the World Cup is just a week away. South Africa hosts Mexico on June 11th in the opening match of the tournament, which comprises 32 teams and culminates 63 matches and one month later in Johannesburg’s final.

England qualified, of course, and we can doubtless look forward to more raised hopes, dashed expectations, broken metatarsals, penalty shootouts and sendings off (history does repeat itself, doesn’t it?). Not to mention hangovers, sickies and punch-ups – and that’s only among the players.

While the tournament may be keenly anticipated by many (and loathed by many others), there are employment law issues arising that employers ought to take into account before settling down in front of the box.

The real world of business must go on and the World Cup, like any popular sporting event, poses problems to employers when workers would like to watch their team. England’s schedule for the first round matches is fairly kind to employers; the first two matches kick off at 19.30 BST and it is only their third match that eats into the afternoon with a 15.00 kick-off.

The Chartered Institute of Personnel and Development (CIPD) recently published its World Cup and Absence Management Guide which sets out the main issues that employers might face and is well worth a read. XPert HR also published a model policy for “sporting and other special events” in Employers’ Law dealing with the same issues.

The CIPD guide suggests that shift swaps, flexible hours and unpaid leave could be utilised or, if employers want to make more of an event (and promote team building) they could screen matches in the workplace. This later suggestion would no doubt suit football fans but for those who can’t stand the game it could cause disruption and resentment if they are excluded. Do bear in mind that if a television is being used on work premises it will need a TV licence and, if live football is being screened through a feed on to employee’s PCs a TV licence is also required for that.

The CIPD’s other suggestion of having a radio or TV on in the background strikes me as unworkable – those who want to watch will feel constrained from doing so and for those who aren’t interested it will be an unwelcome background hubbub. Whatever solution is adopted, it probably pays employers to embrace the World Cup and be flexible, if only as a more constructive approach to dealing with the inevitable problem of absenteeism if no steps are taken.

However, the problems facing employers are not confined solely to how to screen the matches. Staff absenting themselves is one obvious problem, the other might be employees becoming “over-refreshed” (which could be particularly concerning if it happens in the workplace) and committing acts of misconduct and, even, criminal offences. An employer can be vicariously liable for the actions of an employee and claims could arise from one employee offended by the words or actions of another.

For instance, the recent case of May & Baker Ltd (t/a Sanofi-Aventis Pharma) v Okerago the facts of which arose from the last World Cup , demonstrated this. Ms Okerago was employed as a pharmacy inspector. She alleged that a fellow worker made a racially offensive remark to her when asked whether she would be supporting England or her own country. When she replied “her own country” she was, unhappily, told to return to that country. She sued for race discrimination when dismissed by the company, allegedly over an issue of her conduct. The Employment Tribunal held that she had been directly discriminated against. However, on appeal the decision was overturned because (for these purposes) of a technicality. The risk of inappropriate and/or offensive comments or actions occurring will be only be increased, especially if workplace screenings involve alcohol. Employers should remind staff that such conduct or comments will not be tolerated.

What happens if the employee commits a criminal offence (involving football hooliganism, for instance) whilst supporting his team? If the offence takes place outside the workplace the employer needs to consider its position very carefully before instigating disciplinary action. The case of Post Office v Liddiard [2001] where a postman was convicted and sent to prison for being involved in football hooliganism (in France) was exceptional. The Post Office dismissed him for gross misconduct, but that was in response to the damage done to its reputation because of the public outrage that occurred in response, rather than his actual activities.

However, in 2002 another postman was caught on television kicking an opposing supporter and was dismissed by Consignia (as it then was). Although the case was not formally reported he apparently won substantial compensation at an Employment Tribunal. If an employee is alleged to have committed an act of misconduct the employer must be sure to investigate the allegation thoroughly before considering disciplinary proceedings. The employer must follow a fair procedure which complies with the ACAS Code of Practice on discipline and dismissals, or claims for unfair dismissal may arise (and be successful). An employer’s decision to dismiss an employee will be judged by an Employment Tribunal according to the “range of reasonable responses” test. 

The prudent employer will remind its staff of the company’s policies on absence, alcohol consumption at work and misconduct. If an employer sets out what is and is not acceptable behaviour and treats all staff fairly in accordance with those policies, if a problem does arise it should be easier to deal with. It should probably also tell its staff to keep away from postmen at football matches as well. 

• Top of page