Isn’t it funny that whenever there is a disciplinary on the cards, a plethora of people all suddenly have an uncle who is a solicitor or a cousin in HR. And yet it is extraordinary how little is actually known about employment rights, even by some HR professionals and many solicitors. Peter Burgess, MD of specialist recruitment company Retail Human Resources, gives us an overview of the basics of employment law.
Employment law is a specialist area of law and, unlike other areas, the average high street solicitor will almost certainly not be qualified to give advice. They can also be exceptionally expensive as well as potentially causing costly disputes and upset for both sides unnecessarily. So what should managers do if they think a disciplinary problem is about to “go legal”, or what should you do if you think you are being treated unfairly?
First thing’s first, the best advice for both sides is this: don’t go legal or even threaten it unless you really have to. All too often trivial disputes get blown up into raging battles, but if the parties had just sat down and spoken to each other the dispute could have been resolved with very little drama. Sometimes an employee feels aggrieved about an issue and they go home and speak to their family or friends. “They can’t do that” the friends and family cry and encourage the employee to “demand their rights”. This is met with an escalation of the dispute to head office or, worse still, lawyers. By then, whatever the outcome the relationship has irretrievably broken down.
So what is the best advice?
If you are part of a large organisation, your employer will have support and procedures specifically designed to deal with problems effectively and in the most professional manner possible. Most employers will have a formal grievance procedure, which should be available for inspection. This will usually be that you should put your issue in writing to your line manager and if he or she cannot deal with it, there would be a higher level to take the complaint to.
Keep your cool
Don’t bang on about your rights to your superiors and, if you’re the manager, don’t just stand behind policy. Both are inflammatory. Take your time to try and understand the problem.
Don’t get angry in your written correspondence, either. Couch your language in conciliatory terms. If you’re an employee, you want to come over as trying very hard to be reasonable and showing that you understand the manager’s position. If you’re on the receiving end of a complaint from a member of staff, do not resent receiving the grievance. Whether you like it or not, you have a problem and you have to sort it out.
Understand that just because you have raised a grievance this does not mean that your issue can be addressed. At the end of the day, the employer runs the business and provided they have not acted unlawfully, they are not obliged to accommodate your requests. If you’re the manager and the issue is over fairness, take time to really consider whether or not the employee has a point. Don’t fire off an immediate rebuttal. Take time, at least 48 hours, to consider their point. You may feel differently after reflection and, in any event, if you end up in a tribunal, you will need to show that you have taken time to consider their issue. If you give a snap decision it would make a mockery of your process.
If things are really bad
If your grievance is severe and the employer refuses to budge, the only thing you can do then is to resign and claim constructive dismissal in an employment tribunal. If you want do this then you should leave immediately. You would have to prove that the employer has behaved so unreasonably that the relationship of trust has irretrievably broken down. Be warned that most constructive dismissal claims fail and it is very difficult to prove. The employer’s actions will not only have to have been extreme, but you will need to prove that they were.
If you’re an employer and someone walks out immediately saying that they find your behaviour is so unreasonable that they cannot work there anymore, you should anticipate a possible claim for constructive dismissal. If the employee has not gone through your grievance procedure, you should write immediately to them encouraging them to do so. Suggest a cooling off period whereby they can reconsider their decision over, say the next two days. You should do everything you can to demonstrate that you are trying to be reasonable.
There is a lot of nonsense spoken about employment tribunals and, unfortunately, there are people who will tell you that you can win massive awards. In fact, the majority of awards are under £6,000 and the most you are likely to win, if you win at all, is the equivalent to what you have lost. So, if you got another job straight away, you will not win much because you haven’t lost much. Similarly, if you’re the employer, you may want to think about whether you really need to spend £25,000 or more on lawyers when the potential losses, if the judgement goes against you, are unlikely to be anything like that sum.
In the next issue we will talk about discipline and performance management, but in the meantime, the best free advice you can get either as an employer or an employee is from ACAS which provides free telephone support as well as web-based advice.
See www.acas.gov.uk for more information.
Peter Burgess is MD of Retail Human Resources Plc. He holds an MBA from The London Business School and is a Fellow of the CIPD.