Protect Your Business – Handling Disciplinary Issues
Last Wednesday we hosted the second in our series of events aimed at employers and how they can protect their businesses by following the correct processes and procedures in employment law. We were delighted to welcome Barristers Smair Soor and Ben Isaacs from 7 Bedford Row Chambers in London to present an interactive role play session on how to handle disciplinary situations in the workplace.
Smair and Ben gave us a scenario involving a press officer from a fictional women’s charity who posts inappropriate comments on her Facebook page concerning the infamous novel ‘50 Shades of Grey’. The employer took exception to these posts because it conflicted with their ethos and because the subject matter of 50 Shades of Grey arguably promotes violence against women. The session then explored various scenarios that might potentially unfold, from disciplinary proceedings, the employee going off ill with stress, to issuing a grievance. Delegates had a chance to sit in the hot seat whilst being subjected to cross-examination of their actions in response to each scenario.
The message that came out very strongly is that employers need to ensure that any disciplinary action that is taken has to be reasonable and the employer needs to act within the range of reasonable responses test laid down by the tribunals. In other words, the issue for an employer in these situations is not so much whether the employer was right to discipline the employee for posting this material on her private Facebook page, but whether they followed the correct process in investigating what she had done; whether the charity had suffered any reputational damage as a result and those are the factors that the employer would usually be relying upon when considering social media faux pas. To put it in a nutshell: don’t jump into a disciplinary procedure without fully investigating the situation first.
The role play was useful because there were a number of scenarios, in which either the employee was contrite, or she went off on sick leave with stress or filed a grievance complaining about the chief executive of the organisation. These are all potential scenarios which can occur in real life and it was useful to go through each alternative scenario to see how these situations can arise and how easy it is to get the response wrong without giving careful consideration to the options available.
Over the last ten years or so there has been an increasing trend for employees to get “lawyered up” earlier in these internal disciplinary processes and because ACAS has the power to uplift an award of compensation for unfair dismissal by up to 25% if an employer acts unreasonably, there is a significant incentive on employers to handle disciplinary processes sensitively and adroitly.
As of yesterday, every workplace dispute that looks like getting litigious will now have to be submitted to ACAS for "early conciliation" before Tribunal proceedings can be issued. This only emphasises the need for employers to conduct fair disciplinary procedures to avoid being in an awkward position in that conciliation process.
If you are an employer wrestling with a disciplinary issue and need advice please call me on 01707 387075.
Thank you again to Smair Soor and Ben Isaacs, and their clerk Paul Eeles of 7 Bedford Row for making it such an enjoyable and thought-provoking evening.
