Following ‘that’ interview the drama continued with Piers Morgan taking exception to being called out on his behaviour. It culminated in him picking up his football and stomping off home. Although this particular incident hit the headlines because of who was involved, the topic of discussion and the fact the incident played out very publically, it is a scenario that many employers are likely to encounter from time-to-time in their own businesses.
So, what should you do as an employer when one of your staff is outspoken just one too many times, perhaps offends a colleague (or colleagues) and walks out?
Step 1: Pause for thought
The first thing to do is take a breath and do not replicate the behaviour by reacting immediately. As with any staffing matter, the most important thing is that you follow a correct process and be the reasonable employer, even if your employee has been utterly outrageous.
…But what is ‘reasonable’?
The dictionary definition is ‘to have sound judgement and be fair and sensible’, and the best way to have ‘sound judgement’ is to gather as much evidence as possible in an impartial way. In the event of a tribunal claim, you will be judged against the objective standard of whether a fictional “reasonable employer” could have acted in a similar way. Perhaps discuss on a confidential basis with other senior colleagues and, if in any doubt, seek expert external support.
Step 2: Investigate
The investigation should only start once you have ensured that all parties concerned are safe and well. Under the Workplace (Health, Safety and Welfare) Regulations 1992, you have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of your employees.
It is imperative you find out exactly what happened – so speak to everyone involved to gather context and background. Do not show bias. Keep records of your interviews. Use CCTV if you have it. In the case of Piers Morgan, the outburst was shown on national television but even so, there will almost certainly have been conversations before and after the screening and other witnesses. Throughout this process it is important to have one eye on GDPR and ensure that your data processing obligations are complied with. Be wary that anything written about the employee could be requested through a Data Subject Access Request.
Step 3: Meet with the employee
Once you have gathered all your evidence, ensure you know which policies and procedures you need to refer to as you now need to meet with the employee. There are many variables to consider, one being a disciplinary process. If there is a case to answer, you will need to ensure that you comply with your own policies and procedures as well as the Acas Code of Practice on Disciplinary and Grievance Procedures.
Step 4: Determine the appropriate outcome
If the allegation is upheld you will then have to decide if the appropriate sanction is an informal warning, first warning, final warning, or termination of employment.
The type of warning will depend on mitigating circumstances, but there are also some other questions to ask, such as:
- Have you dealt with anything like this before and so have a point of reference or precedence?
- Has this employee been issued with any previous warnings?
- Has the employee shown any remorse?
What if the employee has already resigned?
Employers need to be wary of resignations “in the heat of the moment”, where proper notice has not been provided in accordance with the employment contract or where the wording is ambiguous and it is unclear if formal resignation is actually intended.
Allow for a ‘cooling off’ period and ask again after a short time if they would like to go through with the resignation. If the resignation was verbal, request that it is confirmed in writing.
If the employee says that they are going to resign and then doesn’t turn up for work, you should not consider this as a resignation. This may be an unauthorised absence which may turn into terminating the contract, or it may be another, unrelated matter, such as illness. Further clarification should always be sought in these circumstances.
We all strive for equality and we all have a responsibility to support one another, whether employer or employee. It is well worth your time as an employer to ensure your expectations in relation to fair treatment are made known to all and that everybody is respected.
The way a person is made to feel is one of the ways acceptable (or unacceptable) behaviours and actions are identified. If a person feels like they are being bullied, then that is what you address. It is not for another person to tell them that they are not being bullied.
We all hope these things won’t happen, but be ready for when an employee speaks out or acts in a manner that may prove detrimental to your business. Ensure you have clear guidelines and policies, a staff handbook and/or a code of conduct in place.
Get in touch
If you have further questions, would like to discuss any issues raised in this article, or if you would like our support with your policy stance or any specific situation related to staffing issues, disciplinary investigations or managing your workforce, our Employment Law and HR team would be delighted to hear from you.
Melanie Rowe (Senior Associate)
Paula Early (HR Adviser and Paralegal)