Category Archives: Parliament

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Are Legal Highs a Workplace Issue?

DrugsSUMMARY: Use of legal highs has increased recently – how can employers manage this in the workplace?

The increase in the use of legal highs is now widely publicised.  Given this increase, the reality is that some employees may be at work under the influence.  This could present employers with two main problems: impaired employee performance; and serious health and safety implications for both the employer and the employee.

Whilst some employers may dismiss this issue on the basis it is unlikely to be a significant concern for them, the following points are worth noting when deciding whether to be proactive:

  1. Many so called “legal highs” are actually illegal.
  2. The drugs can have the same effects on users as some more traditional illegal substances.
  3. During 2014 in England, such drugs were implicated in 129 deaths.
  4. Legislation is currently going through Parliament to ban the supply of these drugs.

We would therefore recommend the following action points for employers:

  1. Update policies – consider how this issue can be covered in alcohol and drugs policies.  Employers should have clear rules about coming to work under the influence of drugs and alcohol and about taking drugs or drinking at work.  Legal highs can be treated in the same way as other drugs would be.  If policies are unclear, this is the time to update them.
  2. Remind – remind employees attending work under the influence of drugs that the use of legal highs at work is banned and ensure that they are aware of relevant policies and the potential sanctions for breaching these policies.
  3. Educate – educate staff and line managers on the signs of drug use, what to be aware of and the action they should take.

Contact Details

For more details about the issues in this employment law article or if you would like an alcohol and drugs policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Whistleblowing Update

17663630_sSUMMARY: The Enterprise and Regulatory Reform Bill is currently progressing through Parliament and proposes three significant changes to the current whistleblowing legislation. The recent case of Onyango –v– Adrian Berkeley t/a Berkeley Solicitors has also widened the concept of a protected disclosure to include a disclosure made after an employee’s employment has terminated.

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The Children and Families Bill Update

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SUMMARY:  The Children and Families Bill 2012-13 (the Bill) is currently being reviewed by Parliament. The first reading took place at the House of Commons on 4 February 2013; there was no debate on the Bill at that stage.

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