Category: Dispute Management

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Anna Denton-Jones Communication Conflict Dispute Management Employment Law

Respect in the workplace goes both ways

View of the City of London at sunset

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 Anonymity Disciplinary Dispute Management Employment Law Employment Tribunal Video

Video | Anonymity of witnesses in disciplinary matters

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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

 

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Alternative Dispute Resolution Anna Denton-Jones Dispute Management Employment Law

New guidance on alternative dispute resolution

View of the City of London at sunset

The President of the Employment Tribunals in the UK, Barry Clarke, has issued Presidential Guidance on 7 July 2023 about Alternative Dispute Resolution.

The Guidance acknowledges that the whole Employment Tribunal process has a cost, whether that is for society in terms of running the judicial side of things or for the participants in terms of time, emotional energy, legal costs, damage to reputation and disruption. It acknowledges that whatever the dispute, the Employment Tribunal process involves risk for those involved, both financial, emotional and reputational. In cases where an outcome is fairly clear, the Tribunal’s approach to remedy, when it comes to compensation, can’t be predicted with certainty until the Tribunal has evaluated all of the evidence. Inevitably, alongside the question of whether a claim will succeed, there is always a discussion about what it is worth and in some cases, particularly arrears of pay cases, the costs of arguing about a case can totally outweigh the sums involved.

The Guidance goes onto acknowledge that every time a case is resolved by agreement, in some shape or form, that that is minimising those different types of cost and risk involved. There is an advantage to everybody of being able to move forward if a resolution is reached. From his perspective, resolution of cases also frees resources to be devoted to other cases. You may not know this but when they are listing, the Tribunals routinely put more cases in the diary than there are actually Judges available to hear them, working on an assumption that a high proportion will be resolved.

In terms of settlement options, generally we are talking about conciliation through Acas but also things like Settlement Agreements.

The Guidance emphasises that of course the Tribunal system will decide a case where the parties cannot reach agreement, but the system is going to encourage them to resolve their case by agreement, wherever possible, and this is the focus of the Guidance.

There are four different approaches. This Blog will focus on the three that people are less familiar with: Judicial Mediation, Judicial Assessment and a Dispute Resolution Appointment.

Judicial Mediation is a consensual (meaning the parties have agreed to participate), confidential (without prejudice – so that any concessions made in the meeting will not be used in Tribunal if the process fails) and facilitative (means the Judge is there to facilitate a settlement, not to give any views on the merits of the case in front of them or prospects of success). It is used in cases that are listed for 3 days or more, so complex things like discrimination and whistleblowing cases. This process can be useful early doors before costs have been incurred and usually takes place over a day. If agreement is reached, it falls into the Acas COT3 process to wrap it up. Any Judge that has been involved would not then be involved in a Hearing if the case does reach a hearing.  Success rates are said to be 65-70%.

Judicial Assessment is consensual, confidential and evaluative (evaluative is where the Judge evaluates the respective prospects of success and possible outcomes in terms of remedy whilst remaining impartial). The Judge is able to give an opinion. If the parties don’t accept what is being said, it can certainly assist them to understand the issues at stake and to clarify and narrow the things that are requiring adjudication moving forward so that in itself can be useful to reduce the number of days hearing that is necessary. Again, the Judge that was involved would not be involved in a Final Merits Hearing.

A Dispute Resolution Appointment. This is the new bit – it is non-consensual, confidential and evaluative. It is aimed at cases listed for 6 days or more (more complex claims). A Judge can require the appointment.

Such an appointment can be proactively used where the type of case means that there is going to be a lot of time and effort put into case management, correspondence with the Tribunal or where long hearings are going to contribute to waiting times. These are going to be used where long hearings would be out of proportion with, for example, the fact that the parties are still in an employment relationship or where the likely award would be in respect of injury to feelings only. Such an appointment might also be used if judicial mediation has failed.

Whilst these sorts of cases may settle nearer a hearing time, that in itself, clogs up the system. Effectively, the Tribunal is intervening and requiring the parties to come together to discuss the issues in the case. They can’t of course mandate an outcome from the appointment but they can force minds.

This is usually a 2 or 3 hour hearing which will give an evaluation of prospects of success and possible outcomes whilst remaining impartial. In order to be able to do this effectively, this will take place after the witness statements, so unlike Judicial Mediation, for example, the Judge will have a copy of the relevant paperwork. Again, this is done with a view to the parties really understanding what the case is about and what is at stake, narrowing the issues requiring adjudication and resulting in a shorter more focused final hearing.

Like any change or processes that they are not familiar with, people naturally shy away from trying these things. As a trained mediator, I am of course a big advocate of Alternative Dispute Resolution, particularly because outcomes can be agreed which the Tribunal wouldn’t otherwise be able to order, such as agreed references or apologies.

I took part in a Judicial Mediation last year where I was acting for the Claimant in a high value claim and there were real advantages: the Claimant was able to participate in the comfort of her own home and was not put to the stress and anxiety of travelling to and appearing in a Court environment, the matter was resolved 6 months earlier than it otherwise would have been, again saving a lot of stress and anxiety and she received a sum that she would have been likely to receive had the matter gone to Tribunal. The employer saved themselves 6 months of hassle and all the work in preparing the case.

The next time you are dealing with a difficult dispute, maybe you should give one of these a whirl.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Disciplinary Dispute Management Employment Law Employment Tribunal

Getting invite letters right

Royal Courts of Justice, London

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:

  1. The employee had not been informed of the specific allegation which led to his dismissal; and
  2. The possibility of a lesser sanction of a warning wasn’t discussed with him.

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

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Anna Denton-Jones COVID-19 Dispute Management Employment Contract Employment Law Employment Tribunal Pay

Non-payment of commission due to COVID-19

Royal Courts of Justice, London

The Tribunal has recently dealt with a case relating to non-payment of commission due to COVID-19 in Sharma v Lily Communications. The employee concerned had a basic salary and then commission based on 15% of profit that the business made. This was paid upfront and agreed at interview.

The clause in the contract, followed the common wording that “in addition to your salary the Company may pay you commission of such amount as shall from time to time be determined by the Company in its absolute discretion. Any commission payments will be paid at such intervals and subject to such conditions as the Company may in its absolute discretion determine from time to time. Any commission payment to you shall be purely discretionary and there is no contractual entitlement to receive it and it shall not form part of your contractual remuneration or salary for pension purposes or otherwise. If the Company makes a commission payment to you, it shall not be obliged to make subsequent bonus payments in respect of subsequent financial years of the Company. The Company reserves the right in its absolute discretion to terminate or amend any commission scheme without notifying you”. Do you think the employer were keen to make sure the commission scheme was discretionary with their three mentions of it?

Later the employer tried to change the position, imposing a new commission structure but the judge found that this hadn’t been communicated to or agreed with the Claimant. This is the first important point: an employer cannot just move goal posts – any change has to be agreed with the affected employees.

When COVID hit, the employer realised it was at risk of non-payment by its customers so changed to paying commission only when it had been paid not upfront, reducing the earnings of the Claimant. The Claimant was furloughed and challenged why he wasn’t receiving commission on deals he knew had been signed and paid. He was told during furlough commission was deferred. The Claimant didn’t return to work – he was made redundant in August 2020.

The Claimant brought a claim for over £5,000 commission he said he should have been paid during the period April to August 2020 and was successful. The Tribunal found that the scheme was discretionary but noted that even where a scheme is discretionary there is still a contractual obligation to exercise that discretion rationally and in good faith. The judge found that the uncertainty over the pandemic was a paradigm example of a situation where the employer would want to exercise discretion in a different way so deferring payment was OK. However, when his employment was terminated, the accrued commission should have been paid.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Dispute Management Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations Victimisation

Dangers of a victimisation claim

Royal Courts of Justice, London

A recent case illustrates the risk employers face every time they receive a grievance in relation to a victimisation complaint.

If the grievance has any kind of discrimination angle to it, bullying harassment or an argument about less favourable treatment because of a protected characteristic or an allegation that the employer has failed to make reasonable adjustments to accommodate a health issue, the employer also runs the risk of a victimisation complaint.

The raising of the grievance, if it references the protected characteristic and allegations of some form of discrimination, becomes a “protected act”. If, as a result of that protected act, the employee then suffers some other detriment, this will give them grounds to claim victimisation.

This can be as simple as suffering the consequences of colleagues knowing that a grievance has been raised and behaving differently towards the person who has raised the grievance as a result. For example, a manager who has been accused may be very angry about the accusation that has been made or other colleagues who are interviewed as witnesses in the grievance process might change their behaviour towards the individual, “sending them to Coventry” or even telling them that they agree with what the employee has done. One of the first mediations that I was ever involved with, involved this scenario where a colleague clearly felt a manager didn’t deserve to be criticised by the other employee who had raised a grievance.

A recent case that illustrated this, was a case against Online Travel Training Group Ltd by Mr Weinreb. He was a Business Development Manager and had some kind of altercation with a Finance Manager after asking for her help. It sounds as though the Finance Manager didn’t like the employee and felt he should have known how to do the things he was asking for help with. The Tribunal felt that she goaded him and created conflict. Another colleague implied Mr Weinreb had been Jewish during a discussion about team work, and he also alleged that a conversation about the gay dating app ‘Grinder’ implied his colleagues thought he was a closet homosexual.

The case ended up in cross-grievances – the Finance Manager raised a grievance against Mr Weinreb because he recorded a conversation held about his commission. Mr Weinreb raised a grievance alleging discrimination and complaining about how an employment review meeting had been held.

Faced with the cross-grievance, the Managing Director missed the opportunity to go to a mediator and really get to the bottom of what was going on between the two individuals. Instead the pair were told that they should only communicate with each other by email (Tip: never go down that route).

Matters were investigated but played down – the Finance Manager was reminded of her obligation to show respect to her colleagues. Mr Weinreb attended a Grievance Outcome Meeting with the Managing Director who sounds like she lost her temper. At one point, she banged on the desk and told Mr Weinreb that she was very upset and offended by his allegations of discrimination about his colleagues (Tip: never do this!).

Mr Weinreb clearly didn’t feel listened to and this is a very important part of any grievance process and so appealed the grievance outcome.

The company subsequently dismissed Mr Weinreb for his “unacceptable conduct”. The Managing Director felt that his allegations had been spurious.

The banging on the table at the grievance outcome and failure to give Mr Weinreb any details about why his employment was being terminated were the acts of victimisation in this particular case. It was found that the Managing Director would not have behaved in the way that she had, had the employee not complained of discrimination in the first place.

Since employers are vulnerable to the emotional responses of those accused in grievances and those around them, it is very important that employers must always make it clear to those involved that any mistreatment of the employee who has raised a grievance will, in itself, be a disciplinary issue and that they are alert to their behaviour so that they can take action when necessary.

Refreshing Law
3 June 2021

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

Issues flowing from suspension of an employee

View of the City of London at sunset

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

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Alternative Dispute Resolution Anna Denton-Jones Communication Confidentiality Conflict Disciplinary Disclosure Dispute Management Duty of Care Employment Law Employment Rights Act 1996 Grievance HR Investigations Privacy Procedural Fairness

Showing the complaint to the employee

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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