Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the situation where someone has been offered a settlement agreement where poor performance has been used as the context of the settlement agreement.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses anonymity of witnesses in disciplinary matters.
Anna Denton-Jones
Refreshing Law
Anyone who takes on the role of investigating officer, whether it’s into grievances raised by employees or disciplinary matters, should read Adam Tolley KC’s investigation report produced for the Prime Minister, because it is a master class in how the findings of an investigation ought to be presented.
Firstly, he sets out what his terms of reference were, which is particularly important for those who are appointed externally by an organisation – often when I am acting for the employee, I ask about terms of reference and am shocked by how often organisations have not set out the scope of an investigation. Also, if data is being shared with a third party as part of the investigation, then the Data Protection implications of this needs to be addressed somewhere?
The Report commences by setting out the relevant policies and what they say. Obviously as a bullying investigation, the definition of bullying is set out. In this particular example, he has referred to case law reports within the civil service, but an employer is likely to have a policy setting out what they regard as bullying or if they don’t then there is always the ACAS definition to be referred to.
The Report describes the methodology followed. Tolley goes to lengths to explain the submissions made by Dominic Raab, both verbally and in writing and addresses his representations and how he has factored in those things to his decision-making process. For example, representations about complaints not having been made contemporaneously with events some years down the line or the availability of direct documentary evidence. When you read the explanation as to his thought process, you are able to understand that he has weighed up considerations and to understand decisions he has made along the way. This has the benefit of being transparent, reassuring the employee, in our case, who is at the centre of the investigation, that things have been dealt with fairly. Reports that lack this level of detail are often criticised by the subject, as it will appear that certain things have not been taken into account when actually they might have been.
Adam Tolley also goes into the background first with a detailed description of the Deputy Prime Minister’s working style. The advantage of setting out this background is that not only does it give another opportunity to show fairness and balance, it is useful for anyone reading the report outside of an organisation to understand the context. This will be potentially important if there is an appeal to be dealt with or, in our case, an Employment Tribunal.
The Report is forensic in that it breaks down complaints or allegations into constituent parts and addresses each element in turn. In taking that approach, he is able to sift through those items for which there is evidence and items where there is not, and that gives you a feeling of balance in that he has acted fairly, only finding fault where there is evidence to suggest there was, for example, when it comes to physical gestures like table slamming and shouting and swearing, Dominic Raab was not found to have acted inappropriately. It also enables us to see that each aspect has been covered.
The Report looks at the history – in a disciplinary context, this might be previous disciplinary warnings or whether any informal meetings have ever been held about conduct previously. Here there were certain communications which sought to alert the Deputy Prime Minister to the existence of an issue with his behaviour but those communications did not use the word ‘bullying’.
Where he talks about witnesses, Tolley shows his thinking in terms of the reliability of those witnesses and whether or not they may have had any motive to complain – this is often useful in a Report to articulate why, for example, a particular witness should be believed or not. In this particular case, there is a discussion around so called “snowflake” reactions and the resilience levels that can be expected from civil servants. You would expect any investigating officer to be able to talk about the extent to which they felt witnesses were acting in good faith and in bullying cases in particular, perhaps commentary on the impact the experience had on their health. Adam Tolley recognised the impacts communicated to him were genuinely experienced and this will be the case where we are not focused on the intention of a protagonist but rather the impact that behaviour has had (harassment cases for example).
The Report discusses confidentiality and how that has been addressed and its relevance to the findings in the Report. This is particularly important if the identity of individuals is going to be protected, for example, in harassment cases. In the Tolley Report, because he knew it was going to be published to the public, he has had to work hard to protect the confidentiality of individuals (only two people are named, with their consent) and that has resulted in some detail being omitted and kept between him and the Prime Minister. That would obviously differ in an employment context where the detail and the information would be included in the Report and it’s appendices, although occasionally a decision may be taken to anonymise witness statements and to omit details which would betray the identity of the witnesses.
We can all learn from this example, quite apart from the debate around what is or isn’t bullying. A link to the actual report can be found in the following link:
Anna Denton-Jones
Refreshing Law
A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.
The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included controversial statements alleging the Zionist movement, prior to World War II, collaborated with the Nazis.
The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.
A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.
The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others (human rights). However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.
At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:
The Tribunal found that he should be reinstated.
Whilst the case illustrates the sorts of issues employers are now getting embroiled in around social media and freedom of expression, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decisionmaker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed and the making of comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error here and before writing the disciplinary letter the writer should be thinking ahead to the evidence and what it does/doesn’t prove.
In this case, the employee quite reasonably asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter. The decisionmaker was thinking instead about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust – that was not put to the employee. The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process.
What can you do about this?
If the decisionmaker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should then invite the employee to a further meeting to discuss the fresh allegation that they wish to consider and it may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal. They should then come to their decision.
Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.
The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal! This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not a pre-requisite to consult the employee about that…
The safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and be seen to explain why it wouldn’t.
Anna Denton-Jones
Refreshing Law
A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service who was dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.
The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included alleging the Zionist movement, prior to World War II, collaborated with the Nazis and that the Zionist movement had accepted that Jews were not acceptable there.
The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.
A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.
The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others. However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.
At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:
The Tribunal found that he should be reinstated.
Whilst the case illustrates the sorts of issues employers are now getting embroiled in, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decision-maker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed making comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error and before writing the disciplinary invite letter we need to be looking at the potential evidence from a slightly different angle ie:- what the evidence suggests we might be able to prove. The person who is going to be make the decision either needs to be involved or you end up with a potential ‘gap’ where the invite letter says one thing and the decision-maker wants to do something else.
In this case, the employee asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter.
However, the decision-maker was thinking about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust and that was not put to the employee at the disciplinary hearing.
The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process. I’m sure you’d agree that was fair.
What can you do about this?
If the decision-maker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should explain they believe the allegations haven’t been put correctly. Explain what they believe should have been done instead and then invite the employee to discuss it with their representative in an adjournment, so that they can prepare their response. That might of course mean delaying to a different day. The further meeting to discuss the fresh allegation may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal and be able to have their say before the decision-makers comes to their decision.
Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.
The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the Claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal. This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not normally a pre-requisite to consult the employee about that. Given this new ruling the safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and to ask the employee for their views.
Anna Denton-Jones
Refreshing Law
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
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
You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990. But what about the situation where there is a grievance investigation?
The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing. For example, there may be an allegation of bullying and harassment.
One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.
However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter. If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody. For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting. Is that true?’
If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.
In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter. For that reason, again, the employer may want to choose the most open position.
It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.
The employer will need to carefully weigh all of these issues before deciding how to proceed. If you have any questions please do not hesitate to contact us.
Anna Denton-Jones
Refreshing Law
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