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Archive

March, 2022

Talking Tribunals #6 – New-found facts post-dismissal – can they help?

Posted on: March 23rd, 2022 by Halborns Limited

We’ll often be told that ‘it’s okay – the decision to dismiss the employee was a shaky one, but we’ve since discovered new facts that show the dismissal was fair’. 

In reality, when deciding whether a dismissal is fair a tribunal gives little consideration to facts found after a decision to dismiss (as confirmed by this recent Employment Appeal Tribunal decision).

Honest belief – for a dismissal to be fair you must show that you had an honest belief that the employee did whatever is alleged. That belief must be based on reasonable grounds and following a reasonable investigation.

At the time of your decision – if you can demonstrate each of the above elements at the time you made the decision to dismiss, then you’ll be on your way to a fair dismissal (although you’ll still have a little more to do including showing that the decision fell within a ‘band of reasonable responses’ before a tribunal finds as such).

Influencing compensation – you may be able to use new-found facts to influence any compensation awarded once a tribunal has decided a dismissal was unfair. But,arguments that those facts validate your decision to dismiss will not convince a tribunal that the dismissal was fair.

Getting the right advice early will help ensure your decision-making process is as fair and robust as possible – Intelligent Employment is here to help. Find out more.

 

This update is accurate on the date it was published (24 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

What to do about employees who test positive…

Posted on: March 23rd, 2022 by Halborns Limited

Individuals are no longer legally required to self-isolate if they test positive for Covid-19 – can you require them to stay away from work?

It’s undoubtedly a tricky decision. On the one hand, you have an obligation to provide a safe working environment for all employees (particularly those who are clinically vulnerable). On the other there’s no legal requirement for those testing positive to remain at home – and if they’re feeling well enough to work should you even encourage that? How are you dealing with it – take our quick survey!

Usual precautions – obviously, your usual health and safety obligations apply, especially considering those in your business who may be more vulnerable if they catch Covid-19. If someone is asymptomatic they may not know they’re positive, so having continued communication, support and safety measures in place should reassure everyone that you’re managing risks.

Update risks assessments – don’t forget to update your health and safety risk assessment as the Covid-19 risks change. An up to date assessment with well-communicated actions should reassure employees that you’re taking continued wellbeing seriously.

Enforcing isolation – if you’re going to insist that those testing positive remain at home, be sure to check their employment contracts to identify whether the leave should be paid. Continuing to provide full pay during any enforced leave will minimise potential claims for unlawful deduction from wages. There’s also a chance, with or without paid leave, they could claim you’re in breach of contract if they’re ready, willing and able to work but you’re not allowing them to do so.

Evidently, managing Covid-19 risks continues to be a challenge for employers – get in touch if you need our advice. How are you dealing with employees testing positive? Take our quick survey!

 

This update is accurate on the date it was published (23 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

 

Constant complainers – new tribunal decision

Posted on: March 16th, 2022 by Halborns Limited

A recent employment appeal tribunal (EAT) decision has held that it is possible to dismiss fairly an employee who raises repeated, frivolous grievances.

Background 

An employee raised multiple grievances against his senior managers. He was warned he could be disciplined if the grievances were found to be frivolous, to which he raised another grievance in response. Another grievance meeting was arranged which he refused to attend despite being told this was a reasonable management instruction. The process continued in his absence and he was ultimately dismissed for gross misconduct. The EAT held his dismissal was fair.

Practical takeaways

Consider the facts – this decision doesn’t mean that you can dismiss wherever an employee raises a number of grievances – it establishes that you must consider the entirety of the employee’s behaviour. In this case, the employee’s refusal to withdraw the grievances and attend the grievance meeting contributed to the EAT’s decision that the dismissal was fair.

Focus on the merits – always carefully consider the merits of each grievance raised and follow your grievance process to ensure a thorough investigation of the facts rather than focussing on the behaviour of the employee raising concerns.

Document decisions – if you do find that any grievances raised are frivolous or unfounded after investigation, ensure this is clearly communicated and documented with evidence of your decision-making process and the facts you relied upon at the time.

Take early advice – these kinds of cases are easy to get wrong, particularly if the grievances could amount to ‘blowing the whistle’. Take advice from us at an early stage to ensure you’re well placed to act appropriately and lawfully.

We can help train your teams to manage constant complaints more effectively and efficiently – get in touch to find out more.

 

This update is accurate on the date it was published (17 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Talking Tribunals #5 – Escalating disciplinary warnings

Posted on: March 15th, 2022 by Halborns Limited

If you think you can only escalate a disciplinary warning where the employee commits similar acts of misconduct, you may be taking unnecessary steps which could cause delay, inconsistency and possible unfairness. 

Obviously, a disciplinary warning must remain live in order to be escalated. It seems that confusion arises around whether the latest act of misconduct needs to be closely connected to the misconduct that gave rise to the most recent, live warning. That’s not the case. Provided the new issue relates to misconduct (i.e. the employee has chosen to behave in a particular way) any live disciplinary warning could and should be escalated if you establish the employee has behaved inappropriately.

Example – if an employee behaves in a way that amounts to harassment and receives a first written warning, then that same employee shouts at a customer – can you issue a final written warning or do you need to start with a first written warning again?

Answer – you can escalate the live, first written warning to a final written warning as both issues relate to acts of misconduct.

Ensure you check your own disciplinary policy and take advice if you’re unsure, but escalating a warning is a crucial step in avoiding potential problems at a later date. Get in touch if you need our support to refresh your teams on managing a disciplinary process. 

 

This update is accurate on the date it was published (16 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

‘It was just banter’ – tribunal decision

Posted on: March 8th, 2022 by Halborns Limited

A tribunal has once again confirmed that ‘it was just banter’ is no defence against a claim of discrimination and harassment.

Background

An employee suffered regular comments from colleagues about being an “old white man” and too old and lazy for his job. He’d made a written complaint to the company owner stating the “slurring abuse” was causing stress and sleepless nights. The owner dismissed the alleged behaviour as just being “banter” and took no steps to resolve the complaint. The tribunal disagreed finding that the behaviour created a hostile and intimidating working environment amounting to harassment. The company was liable for age and race discrimination and ordered to pay more than £22,000 in compensation.

Practical takeaways

Zero-tolerance – act quickly, investigate thoroughly, and deal with all harassment and discrimination concerns consistently. Regularly communicate your policies to set your standard (think diversity and inclusion, bullying and harassment) and be sure to follow through on penalties on every occasion.

Training – equality, diversity and inclusion training should form a regular feature in your training schedule. Not only does it set the standard of what’s expected of employees (reducing potential litigation risk), it also gives you an opportunity to show a tribunal that you’ve taken reasonable steps to prevent harassment from occurring and that any claims should be against the accused individual/s.

We can help with making sure you’ve got the right training and policies in place – get in touch for more detail.

 

This update is accurate on the date it was published (08 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.