When doing the ‘right’ thing leaves employers on the wrong side of the law

By Ben Lewins, Birketts LLP
COVID-19 has highlighted the benefits of altruistic behaviour and accelerated employers putting non-financial factors front and centre in their decision-making processes.
Published in Norfolk Director magazine, Spring | Summer 2022
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Legal: Birketts LLP

It’s a shift from a focus on Corporate Social Responsibility to Environmental, Social and Governance factors. The labour shortage has also encouraged employers to look for ways to stand out in a crowded market, with employee wellbeing and engagement becoming a focal point.

However, employment legislation and case law bind every organisation, of all sizes and from every sector, and there is often a dichotomy between the desire to treat employees well and the requirements to remain operationally and commercially viable.

Employers are increasingly trying to do the ‘right’ thing by their employees, but in attempting to do so, they can end up in breach of employment law and facing potential litigation.

We see this across employment law, but particularly when employers avoid difficult conversations and problems.

Employers usually do so with the best intentions to protect their employees, avoid uncomfortable confrontation and preserve relations – rather than facing problems head-on.

Here are some common examples.

Poor performance

Performance management can be daunting for managers and for the affected employee. Avoiding or delaying having those tough conversations can be fatal to any subsequent dismissal. We often find that line managers do not use the appraisal process to address under-performance, which means that there may be insufficient evidence to achieve a fair dismissal.

Managers might think they are saving the employee from an often fraught process, but actually, they can lose valuable time by waiting until breaking point to address the problem, failing the employee and not exploring whether there is an underlying cause (such as ill-health or excessive workload), which could mean that the issue is resolved.

Harassment

Many employers are unaware or unsure of the legal test for harassment, leading to grievances being swept under the carpet or not upheld because of a misplaced intention to do the ‘right’ thing for the employee under investigation.

For example, the employer might believe that the test for harassment isn’t met because the perpetrator didn’t mean any harm, it was a one-off incident, or it was regarded as amusing ‘banter’ and integral to the workplace culture.

However, the legal test does not require ill intent by the harasser, and a one-off act may amount to harassment.

Damages for a discriminatory dismissal are uncapped, and the commercial impact of a finding that harassment has occurred (on the public record) can be devastating.  

Employers may also face a difficult moral dilemma if the individual complaining of harassment asks them not to take formal action. An employer may think they are doing the right thing by agreeing, but an employer has a duty to other employees to investigate serious allegations and may be held liable if they fail to take action.

At the other end of the spectrum, employers are often eager to suspend someone to protect the employee lodging a grievance without giving proper consideration of whether suspension is appropriate or lawful.

Addressing these issues properly (and with legal advice if necessary) at an early stage may involve having difficult conversations with employees, but will often assist in defending any future claim.

When doing the ‘right’ thing leaves employers on the wrong side of the law 1

Ben Lewins is a Solicitor in the Employment Team at Birketts LLP
T: 01603 542731
M: 07807709645
Or visit birketts.co.uk

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