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Top Tips: The Letter of the Law

August 8th, 2014

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letter_of_the_lawBy Ken Allison 

Few things are more unsettling or disruptive for a business than being embroiled in a crisis with employment law-related consequences. Being on the receiving end of an Employment Tribunal (ET) claim feels like being under attack. But having at least a basic understanding about how to handle these sorts of organisational crises can go a long way towards providing a degree of comfort.

I’m never short of material to illustrate these, so here are three relatively recent examples of organisations being thrown into crises which have employment law implications and what we can learn from them.

Lord Rennard and the Liberal Democratic Party

On top of a poor showing in the recent Newark by election, the plight of the Liberal Democrats can hardly have been helped by this long-running saga.

A number of women are reported as having accused Lord Rennard of sexual harassment, and despite his written statement of regret for any “inadvertent” intrusion on their “personal space”, three of the women are still calling for his expulsion from the party.

The investigation into these allegations concluded that they could not be proven. But if Lord Rennard was your employee, the situation could be very different.

Firstly, employment law deems that sexual harassment takes place whether it is intentional or inadvertent. Secondly, the employer does not have to prove allegations ‘beyond all reasonable doubt’ before taking action, but only needs to have an ‘honest belief’ after a careful investigation that the harassment took place.

Incidents of this type are not isolated. In recent research carried out by PwC on behalf of ‘Opportunity Now’, half (52%) of the 25,000 women surveyed said they had experienced bullying and harassment at work, and 12% indicated that this was of a sexual nature.

Survival Tips

  • Investigate allegations promptly (see these 12 guidelines), but if it’s reported informally, keep it that way if you can. Do say ‘I’ll follow up on your concerns and get back to you’., don’t say ‘You’ll have to put that in writing if you want me to do anything about it’.
  • Don’t be dismissive. What is workplace banter to you may be offensive to someone else.
  • Be particularly alert when allegations are made by new employees, particularly if they are not performing well.
  • Do keep a paper trail, it could help you with an ‘all reasonable steps’ defence, where an employer is able to show that they had done everything they could to prevent the acts.

 

Richard Scudamore and the Premier League

‘Oh no, not more sex’ I hear you say. Well not really, because this case throws up other issues which I want to focus on, including email privacy and whistleblowing.

Richard Scudamore admitted to sending emails containing inappropriate comments (including ‘joshing’ a colleague according to Rod Liddle in The Sunday Times).

The Prime Minister regarded the comments as ‘unacceptable’, and Barclays Bank the Premier Leagues sponsors were said to be ‘deeply disappointed’.

He had apparently used a work email account which he regarded as private, but can any of us really expect our work emails to be private? Well, to a certain extent, we can. All employees have a right to work in an environment of trust and confidence and the routine monitoring of our emails would probably be seen as a breach of this.

Richard Scudamore’s problem was that the emails were disclosed by a colleague who was upset about the content. And although she should not have had access to the emails, she clearly did see them. The comments were not aimed at her, but that is not the point. She found them offensive, and in addition they could be said to be at variance to the aims of the organisation, and certainly an embarrassment to the game’s governing body (The Football Association).

The colleague may have seen it as in the public interest to disclose the documents. This type of disclosure is usually referred to as ‘whistleblowing’, and it’s on the increase.

In this instance, the PA who disclosed the emails seems to be a temporary member of staff who only stayed for a few weeks, but ordinarily a disclosure to the press, other than in exceptional circumstances, would probably be a breach of contract on the employee’s part and could lead to disciplinary action.

Richard Scudamore survived the numerous call s for his scalp, and no doubt his very prompt apology helped.

Survival tips

  • I’m not a fan of extensive Staff Handbooks that cover every possible event, but if you are in a regulated business, such as financial or care services, or you have a high public profile, then a ‘Whistleblowing Policy’ is recommended.
  • Richard Scudamore’s mishap was not using ‘social media’, but many organisations have instituted policies, or at least given guidance on acceptable on line behaviour. See this very useful guide from ACAS.
  • It’s probably a good idea to make sure that ‘bringing the organisation into disrepute’ is listed as a gross misconduct offence.

 

Sharon Shoesmith and the London Borough of Haringey

My final employment law-related organisational crisis is the complex story of Sharon Shoesmith and the London Borough of Haringey (something I’ve written about in more detail elsewhere).

Sharon Shoesmith was Director of Children’s Services at Haringey Council when she was sacked in December 2008 following the Baby P murder case. In the context of a public outcry, Ed Balls, the then Secretary of State, had instructed Haringey to remove her from office.

The Courts decided that her dismissal was unlawful, and last October it emerged that she could have won as much as £600k for being unfairly dismissed. Fundamentally, the courts ruled that she had been dismissed without the chance to give her side of the story, and there were also questions of consistency.

Settlements of this order do not usually occur in Tribunal cases, but Sharon Shoesmith secured a judicial review of her dismissal, and the Court said it was unlawful. Despite this difference from normal cases, there’s some lessons for us all.

Survival Tips

  • If an employee has two years service, then they have a fundamental right not to be unfairly dismissed. At the centre of this is the opportunity to give you their side of the story, at the point when they are faced with the possibility of dismissal. So always make sure they have that opportunity – we normally call it a ‘hearing’.
  • Make sure you act consistently. Shoesmith made the point in front of the Court that similar action had not been taken in relation to senior management at the Police and Health Services which were also involved with the case.
  • Don’t be persuaded to cut procedural corners when there are external influences such as negative press coverage. For misconduct or poor performance you will probably have a procedure, and if not the ACAS Code of Practice should be your guide.

 

So there we have it. Three examples of organisations that have experienced a crisis with employment law related implications. Of course, all three are firmly in the public arena, and likely to attract much more attention than might occur for the organisations with which Academy members are associated.

Thankfully Tribunals do take the size of the organisation into account when deciding on the reasonableness of an employer’s behaviour, but, nonetheless, these cases present useful insights into what might be expected from us when dealing with unacceptable employee behaviour.

 

Ken AllisonKen Allison is a trainer and speaker who manages to make his topics, such as employment law and performance management, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken’s company, Paradigm Partners, specialises in employment law related and performance management training for managers, and through his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

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