Category: Communication

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Anna Denton-Jones Communication Conflict Dispute Management Employment Law

Respect in the workplace goes both ways

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Happy New Year.

I am in the middle of preparing a training session on ‘respect in the workplace’. Naturally in that session we will be discussing what ‘respect’ means and looks like on a daily basis for the delegates.

I have been reflecting on the trend I have been seeing where certain individuals behaviours are overstepping the mark. For example:

  • They might have a grievance against the organisation but write quite toxic emails to the manager concerned.
  • These might be sent at night, early hours of the morning or at weekends or when they know a manager is on holiday.
  • Typically these emails demand a somewhat immediate response from the recipient.
  • The behaviour gets worse if the person perceives that the manager has not responded fast enough.
  • The sender is undoubtedly dumping all their emotions about something on the recipient.
  • The emails can be above average in length. A recent example of this was a manager having a meeting with someone following normal management processes on a Friday afternoon. Cue a 26 page ‘grievance’ the next day, a Saturday.

All of this might fall within what Acas calls ‘extreme difficult behaviour’. All of those who work in this space have become inured to having the odd one – we used to joke about that one personnel file that outpaced all others.

However, this is becoming more normalised. I think this is because of the general themes outside of work of expressing your views on social media, a more polarised world and people post pandemic being wrapped up in only thinking about themselves.

What is clear is this is not healthy for the recipient of this. One manager I have been liaising with mentioned her hair falling out as a result of dealing with ‘that’ person. We all get triggered when we see the name of the person who is doing this flash on our phones/inboxes.

Upward bullying is a thing. I’ve even witnessed people doing this to judges! What we are not great at is setting boundaries about this and putting some controls in place. I am struggling with this as much as you. What can we do?

The things I have thought of are:

  • Have a short policy on expectations around answering emails so it is clear what out of hours rules and KPIs on response times are.
  • Communicate to staff eg:- in newsletters that you expect all communications to be respectful and polite.
  • Be brave enough to call out the person being toxic – this becomes a performance management issue. You would be saying you are entitled to raise XYZ issue but not in the manner that you have.
  • Include in email footers the organisation policy that any email which is not respectful in tone will not be dealt with and then if people send problematic correspondence draw their attention to why they are not receiving a response.
  • Empower managers not to feel they have to put up with inappropriate behaviour – not encouraging cross grievances but saying it is OK to say when you are finding it hard to deal with something, speak out and we’ll agree a strategy.
  • Amend bullying policies specifically around this kind of behaviour – communicate that inappropriate emails won’t be tolerated
  • Write to warn people of the Protection from Harassment Act and that their behaviour could be tipping over into this.
  • Have a system of escalating upward bullying to a anti-bullying tsar who would step in and say disciplinary action could be taken if behaviour isn’t modified? Often the threat puts someone in their box.

Any other ideas?.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law

Knowledge November 2023

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Week 1

Covering the topic of ‘changing terms and conditions’, Week 1 of Knowledge November 2023 is now available to view:

https://mailchi.mp/b2caa2c0aa1b/welcome-to-knowledge-november-refreshing-law-15647912

Week 2

Week 2 of Knowledge November 2023 is now available to view. Last week we looked at the background and flexibility clauses. This week we consider:

  • Are variation clauses any help?

  • 3 ways to vary the contract

https://mailchi.mp/ff4161aa847c/welcome-to-knowledge-november-refreshing-law-15648052

Week 3

Last week we looked at the first two routes to a change of contract. In Week 3 of Knowledge November 2023 we will look at the third.

https://mailchi.mp/a85806429922/welcome-to-knowledge-november-refreshing-law-15648056

Week 4

So far in Knowledge November 2023, we have considered the main legal risks and routes to achieving a change but during this final week we look at how do we do it.

https://mailchi.mp/5ad6bae9bbba/welcome-to-knowledge-november-refreshing-law-15648060

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Collective Redundancy Communication Employment Law Employment Rights Act 1996 Redundancy Settlement Agreements Video

Video | Settlement Agreements — An employer’s contribution to fees

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the various issues around an employer’s contribution towards an employee’s legal fees when negotiating Settlement Agreements.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Communication Employment Contract Employment Law HR Offer of Employment Recruitment Video

Video | Offers vs contracts

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing a case she read about recently which relates to an issue that she does see cropping up from time to time around what has been offered at interview and in the initial offer letter versus what is in the contractual documentation later on.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Communication Confidentiality Disclosure Employment Law Procedural Fairness Without Prejudice

Changing what you say in protected conversations

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From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked “without prejudice” believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.

The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the “without prejudice” letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.

The Tribunal agreed that the “without prejudice” letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked “without prejudice” and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employee’s contract unilaterally.

As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.

The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!

This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.

Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that it’s such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed – this leaves it uncertain.

Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.

You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.

Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked “without prejudice” and probably subject to a protected conversation.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Conflict COVID-19 Disciplinary Employment Law Grievance Investigations Return to Work Stress Victimisation

Why we might be seeing more conflict and mistakes

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You may have noticed some of the following since the pandemic:

• People getting more upset than “normal” over something relatively trivial.
• People having a very emotional reaction to something they are asked to do, for example, returning to the office.
• An increase in conflict in situations where previously this would have been less likely to happen and employees being less resilient.

There is a brain science explanation for all of this. We have at brain chemistry level, been living within an environment of constant and invisible threat for 18 months. During a situation of stress such as this, the limbic system goes into overdrive and more complex parts of our brain such as the prefrontal cortex are used less.

This all makes sense in an emergency: we need our brains to focus to enable us to deal with the threat. For example, I had somebody drive into the back to me recently at speed while I was stationary in the car. The limbic brain function enables you to calmly deal with the situation but in that state it becomes much harder for us to think rationally, deal with complicated decisions and we become error prone.

This might also explain why, if you are feeling that you are just trying to do something relatively straight forward that you have always done but for some reason it feels more challenging than previously. We overloaded the system. I always remember a junior doctor talking about how they coped with their very long shift working and all that their job brought with it but would burst into tears when they found that the toothpaste had run out. It’s a perfect illustration of the pressure on our system, suppressing the prefrontal cortex and yet reacting emotionally, losing our tempers more and being unable to talk ourselves down in the way we would normally.

Normally the prefrontal cortex is able to talk to the limbic system essentially telling it to calm down and behave more rationally but if we are stressed, tired or sick then that becomes more difficult. We know how exhausted everyone is saying they are, particularly those who have worked in the front line or who have had to step up in other ways to see their organisation through the last 18 months, we can see why normality is being impaired.

This is why everybody feels a bit on edge but can’t really articulate why – it is normal when you’ve survived some kind of disaster.

The brain is immensely adaptable and will figure its way through this phase. It can even be a good thing where people will grow as a result of the experience, with the majority returning to functioning as they did before and a small proportion effectively experiencing post-traumatic stress disorder. Researchers are even beginning to talk about the common outcome being long term resilience but for the meantime, what can we do?

We have to accept that a cohort of the workforce are feeling immense fatigue and have short levels of concentration or simply struggling to concentrate at all. We have to recognise when this is happening that it’s not necessarily a permanent state of affairs and that we need to provide support rather than go straight to performance managing out. It may even help to talk about this to get people to understand what is going on so that they accept their emotional state, rather than trying to fight against it. This reduces them being stressed about being stressed in the first place. It stops people dwelling and feeling increasingly negative. Dealing with what’s going on in a non-judgemental way can drag that prefrontal cortex back into the picture and give it a chance to quieten down the limbic system. If people are in a state of anxiety it can be quite easy to end up in a negative spiral where that becomes the dominant emotion.

When we are in a particular mental state we tend to dwell on the particular emotion that we are feeling and remember all of the other times that we have felt this way rather than all the other times when we haven’t felt this way. It may help people to understand that this is what happens and that dwelling on something more positive can help the brain chemistry.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Duty of Care Employment Law Health and Safety Health Conditions Mental Health Risk Assessment Stress

What to do when you’re worried about someone — Suicide awareness

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Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law Employment Rights Act 1996 Overtime Right to Work

The right to disconnect — Tread carefully

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As more and more of us feel that we are losing the ability to switch off from work and take an uninterrupted rest, which is of course required under the Working Time Regulations, more and more discussion is taking place about whether we need some kind of “right to disconnect”.

The French led the way in 2017, amending their Labour Code to include this right for employers with more than 50 people – their law requires the employer to negotiate with employee representatives to control the use of digital tools. Italy, Spain, Slovakia, Luxembourg, Netherlands and Germany have all followed suit with Ireland being the most recent addition. In Ireland their Code of Practice requires employers to have a policy in place which confirms that employees have a right not to work outside of normal working hours, that employers and colleagues should not routinely email or call outside of those working times and the employee should not be penalised for refusing to work during non-working hours.

Whilst that Code of Practice doesn’t have the force of law of in the sense that breaching it leads to a claim for damages, it could be used as a supporting argument when somebody is bringing a claim about something like breach of working time, health and safety legislation or bullying and harassment or plain old breach of the implied term of trust and confidence for a constructive dismissal.

You may have seen email footers that more routinely now set out the times in which somebody is likely to be contactable and/or answering their messages. More and more employers are carving time out in diaries when meetings cannot be timetabled and dictating that meetings should not be timetabled at unsociable hours, save in emergency circumstances.

Initially I took the view that employers in the UK should not be waiting for our Government to legislate, (the TUC has called for the Government to include something in the Employment Bill but there is no indication that they are thinking of it) and encouraging employers to incorporate something into their policies and procedures.

However, I also remember the days before the Blackberry when my desktop PC sat on my desk in the office and I was unable to deal with email correspondence if I wasn’t physically at my desk. I remember being given a small square to stick on the back of my hand by a colleague that I did some stress at work training with for a large employer. The square would change colour back to blue when your body chemistry changed and your body was full of the stress hormones, cortisol. As an experiment I kept this and placed it on my hand the next day that I was due in the office. I remember driving to work and monitoring the situation. During my commute to work, when I was beginning to think about work, the feedback was that I was not suffering from stress. However, as I approached the door and was using my door entry fob, that is when my stress levels rose, telling me that the anticipation of what I might find when I logged my computer on was stressful to me.

I approached my desk and duly logged on and my stress levels remained high until the time when I’d managed to see what was there and prioritise what was urgent and what else could take a bit longer to deal with. Once I had a handle on the situation, the colour of the square returned to normal.

When the ‘Blackberry’ was introduced (which is a form of mobile phone for those you who are too young to remember!), allowing me for the first time to have email on the go I remember thinking it was a positive thing and that now in the short moments that you might have waiting somewhere or when you have parked your car, you keep an eye on things, delete the rubbish and then arrive back at my desk ready to roll because I would know what things I needed to deal with and when. That’s many years ago now and I’ve still always thought that the ability to have your email follow you has actually been a positive thing on balance.

What is different now stems from a number of issues:

  1. The sheer volume of emails being sent. From employees being copied in on emails that they don’t need to be, to having email conversations with colleagues when actually a quick phone call would be much more efficient, those emails where people won’t let go of the conversation and so send another email…. The list goes on.
  2. Remembering email is just a tool – it is how we use it for good or ill that counts. What I am noticing is that the pandemic seems to have put everybody to a state of ‘high alert’ where everything is urgent and everybody expects a response now and timelines have become unmanageable and isn’t it that that is the issue rather than being connected?

Any employer considering how they deal with mental health issues and wellbeing particularly as we move towards more hybrid forms of working, will need to be putting in place guidance around employees not feeling that they need to work outside their set hours but the key underlying issue is workload and I would suggest that it’s workloads in general that need to be being looked at rather than focusing solely on something like the right to disconnect. It will only ever be part of the jigsaw puzzle.

On 21 January 2021, the European Parliament approved a Resolution asking the Commission to introduce a Directive to establish the minimum requirements for remote work across the EU which would include the ‘right to disconnect’. That would require employers to establish a detailed written statement setting out arrangements for switching off digital tools for work purposes; set out systems for measuring working time; encourage training and awareness of the right to disconnect in the workplace and make sure that workers don’t suffer adverse treatment or dismissal for having exercised their right. This will undoubtedly reinforce things across Europe and employees are naturally going to start to gravitate towards those organisations that they feel are looking after them and shunning those who they feel are abusing their private lives by intruding on them.

We are likely to see rapid change in this area but I would caution employers to look at the whole picture and not just this narrow aspect. A poll conducted by Owl Labs and reported in People Management found that lots of employers are considering implementing shorter working weeks with others concerned that focusing on core working hours could be to the detriment of those who have to work in a flexible way for caring reasons including parents. This is a topic I will return to.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Anonymity Communication Data Protection Act 2018 Data Subject Access Requests Data Use and Access Act 2025 Privacy Video

Video | Data Protection Processors

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the various issues around data protection in relation to other people who you might be engaging with but who are not your employees. 

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Disciplinary Dispute Management Employment Law HR

Issues flowing from suspension of an employee

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So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.

I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.

When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.

You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.

It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.

In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.

Anna Denton-Jones
Refreshing Law