Fear of UK employment law can and does leave genuine employee related issues unaddressed and can even stop vital organisational change programmes in their tracks.

The good news is that UK employment law is designed to be used for good.  In this article I will walk you through the legal process and provide practical guidance on how to apply the law correctly to achieve fair and positive outcomes for the good of the business and the workforce as a whole.

Introduction

Having worked with countless businesses over the years tackling particular employment issues and/or helping them deliver wider changes staffing arrangements, the starting point for most of employers is that employment law is stacked against them and therefore tackling staff issues or introducing changes to a business is a difficult and risky process.

Whilst there are employment issues that can be tricky to address, the general negative perception from employers that the law is an ass and employment law is a pain in the ass is, largely misconceived.

It is a myth that has largely been created by employment lawyers and HR professionals seeking to market their services by convincing employers that employment law is difficult, risky and that if they attempt to navigate it without professional help that the outcome will be similar to a drunk teenager attempting to sprint across a minefield.

The newspapers play their part too. There are not many newspapers sold off the back of the headline “Employer successfully concludes restructuring”.  It is only the obviously unfair, lurid or high profile cases that warrant headlines.

My aim here is not to seek to rehabilitate either the legal profession or journalists – both lost causes I fear – but to try to convince businesses that their misconceptions about employment law and how it operates may well be holding back their businesses.

Holding them back from tackling the employee or the team that is not performing, from introducing change that is needed to keep the business moving forwards, from ensuring that the business is light enough on its feet to remain nimble in a constantly changing business environment or from cutting cost to ensure it remains competitive.

The central aim of this article is to debunk the employment law myth and thereby encourage businesses to tackle those staff issues (big or small) that they have been putting off and by doing so deliver increased performance, morale and flexibility within the business in the long term.

Putting the perceived employment law threat into perspective.

Often employers are concerned about taking action because they are worried about ending up in an Employment Tribunal.  This fear in itself can leave employment issues to fester at the determent of the business and its workforce as a whole. Let’s try to put this threat in perspective.

Most types of Tribunal case are dealt with by an Employment Judge rather than the three person panel that most people understand to be a Tribunal.  Contrary to popular belief, judges are neither pro-employee nor pro-employer.  Their genuine aim is to apply the law to the facts of the case as they determine them and deliver a fair outcome.

In 2015/16 there were 83,000 Employment Tribunal claims out of a workforce of 31.5 million. This represents claims being brought by less than 0.3% of the overall workforce.

Of those 83,000 claims, only 13%, or just under 11,000 claims made it to a final hearing.  The rest were settled, withdrawn, abandoned or struck out.

Of the 13% claims that made it to a full Tribunal hearing, in less than 6% resulted in a finding against the employer for unfair dismissal, 603 claims in all, with an average compensation award of £13,851.

I realise that no sensible employer wants to have to defend a weak Employment Tribunal claim that they ultimately win. However, I suspect that most employers would not expect such statistics to be so far in favour of the employer. I hope this goes some way to debunk the employment law myth.

We are not living in Victorian times where the “like it or lump it” approach to employment law prevailed. Most employers accept that there has to be some sort of legal structure defining the sometimes conflicting rights of employers and employees and a mechanism for determining disputes.

I am also not suggesting for a moment that all employers are paragons of virtue and all employees are feckless shirkers. You get good and bad on both sides. The law seeks to strike a balance between the need of the employer to effectively to tackle poor performance, absence, bad behaviour and to adapt its workforce (both in terms of function and size) to the needs of an ever-changing business environment, and the rights of an employee to be given the chance to understand and respond to allegations against him/her, to not be discriminated against and to be able to raise concerns about how they are being treated.

As the figures above suggest, the way the law is structured gives employers a significant degree of discretion and flexibility when making decisions about staff.  The law is deliberately set up to offer appropriate protection to employees, but without ham-stringing employers who need to tackle problems and be able to adapt to changing market conditions.

I will try and illustrate the point practically by focussing on one particular area – misconduct.

Taking Effective Management of Misconduct as an example

If an employee has behaved unacceptably at work, then they may be dismissed and the reason for their dismissal will be their conduct.  This is a potentially fair reason for dismissal.

Subject to some important exceptions, if an employee has more than two years’ service then they have the right to bring a claim of unfair dismissal in the event that they are dismissed.

Before the employer can dismiss for misconduct it must follow certain basic steps:

  • Undertake a reasonable investigation;
  • Invite the employee (in writing and giving fair notice) to a meeting at which the employee will be given a chance to dispute the allegations;
  • In advance of the meeting inform the employee (in writing) of the allegations against him/her and provide the evidence that has been gathered during the investigation;
  • In light of all the evidence, decide whether or not you believe that the employee is guilty of the alleged misconduct;
  • Impose a fair and proportionate sanction in respect of the misconduct;
  • Communicate the outcome and a right of appeal;
  • Determine any appeal.

In essence, the process involves gathering evidence, putting the evidence to the accused, giving the accused a right of response and determining the issue based upon the evidence. In my view, this process is relatively straightforward and the required steps are no more than basic common sense.

When deciding whether the employee is guilty of the alleged misconduct, the law does not require the employer to prove the misconduct “beyond reasonable doubt” or even, if we are being specific, to actually prove the employee was guilty of the misconduct.

What the employer must do is have reasonable grounds on which to conclude that the employee is guilty of misconduct.  This is very different from actually proving the misconduct took place.

For example, if you have an employee that you believe has been dishonestly mis-claiming time worked then you will have evidence of the errors in the form of the timesheets as against the time worked.

If you are going to allege that the errors are deliberate then you must have reasonable grounds for believing that the errors were in fact deliberate.  You do not have to prove that the errors were deliberate. You merely have to have evidence on which you can form a reasonable belief that the errors were deliberate.

Evidence from a manager saying that the employee knew about the operation of the timesheet system, was precise in other areas of their work and an examination of the errors that suggests that their nature, frequency or timing means that it is more likely that the errors were deliberate than innocent would all form the basis of that reasonable belief.

Once employers understand that they do not have to prove guilt, but merely have to carry out a reasonable investigation, genuinely believe that the employee is guilty and have reasonable grounds for that belief, then they are often much more willing to take action in cases of wrongdoing.

The same is true in performance cases, where the same basic principles set out above also apply. Again, there is a process that must be followed, but the employer does not have to prove that the employee cannot perform. The Court of Appeal summarised the position as follows

“Whenever a man is dismissed for incapacity or incompetence, it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent”.

Once employers realise that the law is specifically intended to allow them to address issues of absence, performance and misconduct, this can be a powerful force for change.  While certain basic procedural requirements must be followed, the employer has a wide discretion to deal with issues as they see them in their business without having to second guess what the Courts might say.

Taking prompt and fair action with persistent staffing problems or badly behaved or under-performing staff sends a powerful message to other staff and about the ethos and intentions of that business.  Toleration of poor behaviour or poor performance is infectious and tends to set a “that’ll do” tone within the business.  In these increasingly competitive times, this is something that businesses cannot afford.

Employment Law as a Facilitator

Generally, in business employers should see employment law as their ally and a means of facilitating change, improvement, efficiency and flexibility in the business.

The law gives employers significant scope to set the rules of the game by allowing them to determine the contractual terms upon which employees will be employed.

The law gives employers the tools to address underperformance, excess absence and misconduct and to do so with limited disruption, risk and cost – as long as the appropriate procedures are followed.

Having clear rules, procedures, contractual rights and obligations limits scope for disputes in the first place and gives managers significant scope to deal with any such disputes if and when they arise.

These rights are not airy fairy or simply compliance issues in order to tick a box.  If handled correctly, they go straight to the bottom line.

For example, I worked with a client that runs a large fleet of vans.  The vans are a costly resource but, of course, are horribly abused by the workforce.  As part of a general overhaul of contracts and policies, we introduced a new policy governing the use of the vans.

The new documentation was openly and clearly introduced and staff were specifically reminded of the implications of non-compliance.  When, inevitably, a number of staff continued to treat the vans as they had before, they were subject to disciplinary procedures and issued with written warnings.  This was very low risk and with limited hassle to the employer.  The entire disciplinary process took no more than two weeks.

These simple, quick and low risk steps have forced a change of attitude and behaviour from the staff. This has gone directly to the bottom line as the employer estimates that the vans now last on average 10% longer than previously, thereby significantly reducing the cost of this hefty overhead.  What’s more this supported promotion of a positive culture of pride and respect within the business.

I could give numerous other examples of ways in which this overall approach of setting clear expectations, facilitating the achievement of those expectations and firmly addressing any shortfall in meeting those expectations has resulted in increased efficiency, flexibility and control for numerous businesses.  Ultimately, this is taking an adult to adult approach to employee relations building respect on both sides.

Final Thoughts

I could go on at length and provide you with long lists of examples of how the law is specifically designed to allow employers to adapt, change and deal with issues within their businesses.  I could also give you many examples of employers who, once they set their minds to tackling particular issues, are pleasantly surprised how easy it is for those issues to be successfully addressed and kick themselves for not doing it sooner.

The bottom line is that all businesses must adapt and evolve to remain competitive and employment law is specifically designed to allow that to happen.

 

Michael Bauer
Employment Law and Specialist in Organisational Change

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