Category Archives: discipline and dismissal

Who is to blame? Shoesmith an exception?

shutterstock_81310291The tax payer is about to pick up a mighty bill as the sorry saga of Sharon Shoesmith has ground its way through the courts.

Sharon Shoesmith’s story is just an extreme version of what goes on every day.

To summarise:

  • Under resourced/overstretched team
  • Impossible goals
  • Something goes wrong
  • Something must be done
  • Someone must go
  • Unfair Dismissal

This endless cycle (in small and large organisations) creates an outcry that unfair dismissal should be  abolished or eliminated  – another Something Must be Done.   Shortening the cycle by removing one step is an attractive option but it does not really deal with the fundamental problem.    So often we see organisations remove an individual for underperformance without making any changes to how the business/department is organised, managed, resourced, or run.

Guess what?

A few months or years later we are having the same conversation again about a new person!  ‘Lessons have been learned’ often translated into ‘heads have rolled’ and that’s the end of that.  The real cost to individuals, businesses and in this case the tax payer is very high.

Recruitment errors are not the same as supervision errors

We all recognise that sometime the wrong person is recruited and the only way to solve the problem is to get another person.   But there are some fabulous opportunities to improve our own managerial processes and to learn from when things go wrong.  One of the things we might decide to learn is that sometimes our goals are over ambitious in terms of our resources and we have to be realistic about what real people can achieve.

Frustration isn’t a plan

Reaching for excellence is a fabulous thing, but if you are frustrated by your team’s inability to reach it, then frustration can set in.   So many of us just repeat what we did before (saying it LOUDER) and are surprised that we get the same results (only LOUDER). Then we snap and we want to get rid of the person we feel is to blame.

It’s human.  It’s understandable.   It doesn’t really get anyone to where they want to be.  And it will trigger unfair dismissals.

There is a better way

It is possible to improve performance, but it takes time and thought and effort by the Boss.  Sometimes we are so overwhelmed by struggling with what is going wrong that we can’t even imagine finding the time and energy to create a better way to work.   The whole problem can seem too big to tackle.  The Boss ends up working till 3am to meet deadlines or redo sub standard work .

We see it all the time.  With a bit of support, a bit of clarity and the right arrangements between boss and staff we can all avoid a mini-Shoesmith.

We just need to have the conversations and do the thinking.  Employment law is just one of many reasons why you might not want to sack the person who seems to be to blame without going through any real process.  There are better  (and cheaper) ways to end your frustration than spending a large amount of your (or tax payer’s) money on unfair dismissal awards and legal fees.

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Open and shut

Sooner or later every HR practitioner is faced with the open and shut case. A case where on the fact of it, the actions taken are so blatantly wrong that there seems little point in taking a lot of time to decide what needs to be done. Busy line managers can exert considerable pressure to come to a conclusion and move on.

 The canny HR manager often uses employment law as a way of slowing things down and encouraging everyone to reflect. It is much easier sometimes to say “the lawyers want us to do this” than it is to say “I think your decision may be flawed and misses some key data”. I have had HR practitioners ring me and say “Give me a reason why we can’t make a decision today”.

 When it comes to decisions on discipline and dismissal the employment law requirements for a good process are not that different to the classic good process for making a sound decision. The problem is most of us are not good at making sound decisions – particularly when we are upset.

Managers, being human are often keen to rush to a conclusion and by-pass any real decision making process. This can cost the organisation dearly – not only in legal terms – but in terms of losing individuals who might otherwise have benefited the organisation over the longer term.

 Here are some open and shut cases.

 Before you click the link to find out how it turned out, ask yourself: What would my managers do?

 What would I advise?

  1.  Seeing red
    A customer complained that a waitress deliberately tipped a jug of iced-water into his lap and stormed off. The waitress had only been employed for six weeks. When asked about the incident she agreed that is what she did. Her line manager was anxious to ‘get rid’ saying she was obviously volatile.  https://irenicon.wordpress.com/2011/08/15/seeing-red/
  2. A word to the wise
    A retailer had half a dozen staff in each of three shops. He was a very hands-on boss and knew all his staff quite well and saw them regularly. He regularly opened and closed each of the shops and often worked alongside his staff during the day.
    One of his staff had worked for him for a couple of years, and had been quite reliable and hard working. He started getting into work late and seemed to have lost all interest in the job or getting in on time. One day, the owner was standing by the door of the shop when the guy turned up 15 minutes late for his shift. “What time do you call this?” said the boss.
    He was met with a mouthful of abuse in front of all the other staff at the shop.  https://irenicon.wordpress.com/2011/08/16/a-word-to-the-wise/
  3. To catch a thief
    Our client had two warehouses at opposite ends of the country. They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.
    On a fairly regular basis, security would catch someone stealing an item or two. They were interviewed and dismissed. All the captured thieves said “everybody is doing it” … but they would say that, wouldn’t they?  https://irenicon.wordpress.com/2011/08/17/to-catch-a-thief/

It is easy to blame employment law for having to ‘jump through hoops’ and go through tortuous and unnecessary processes. But people decisions are very important decisions for the organisation, and for the individuals concerned. Employment law places great stress on the decision making process (otherwise known as the investigatory and disciplinary process). We shouldn’t need laws to make us go through a rounded decision making process, but following employment law requirements can have that beneficial effect. We can use employment law related decisions as a way of teaching better decision processes – to the benefit of the business in the round. Or, as we often say, “let’s turn our lemons into lemonade”.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk
You can follow Annabel on
Twitter

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To catch a thief

Our client had two warehouses at opposite ends of the country.  They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.

On a fairly regular basis, security would catch someone stealing an item or two.  They were interviewed and dismissed.   All the captured thieves said “everybody is doing it”   but they would say that, wouldn’t they?

Despite the monotonous turnover of staff dismissed for theft, the thefts would reduce for a few weeks or months, and then start to increase.  It seemed as though even honest new recruits quickly turned to theft.   Large amounts of money were spent on surveillance and security.

Each individual who was caught was a fairly open and shut case – they were often caught red handed, and many confessed quite freely.    Job done?  Thief removed from the premises?

We had a look at how the security team were questioning the individuals they caught.   They were very focused on  “Do you confess….”.   With a bit of training and support from us, we got them to change the way they asked questions, and what they asked about.  We also helped them to look at the wider pattern of data surrounding the thefts and dismissals that had already taken place.

Outcome

It turned out it was the Warehouse  Manager who was co-ordinating the thefts, recruiting new staff and inducting them into the network.   He was arranging for individuals to be caught, both to punish ‘freelance’ thieves who were not within his protected group, but also to show that he was ‘onto the problem’.

He had a team of subordinates who worked with him, and they were trucking goods out of the warehouse on articulated lorries!

In the year after the Manager’s dismissal, the client saved a million pounds on stock losses alone.

See our previous blog

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under discipline and dismissal, employment law, Security, surveillance, Theft

A word to the wise

Sometimes the obvious decision isn’t the right decision for the organisation.  It is easy to get focussed on narrow issues, or rush towards a conclusion when a decision seems obvious.

We are all busy and no-one wants to make a big thing of a little thing.   We all need an intelligent friend to nudge us and say “This doesn’t make sense – check it out” or “Are you so sure about that?”

A retailer had half a dozen staff in each of three shops.  He was a very hands-on boss and knew all his staff quite well and saw them regularly.  He regularly opened and closed each of the shops and often worked alongside his staff during the day.

One of his staff had worked for him for a couple of years, and had been quite reliable and hard working.  He started getting into work late and seemed to have lost all interest in the job or getting in on time.

One day, the owner was standing by the door of the shop when the guy turned up 15 minutes late for his shift.   “What time do you call this?” said the boss.  He was met with a mouthful of abuse in front of all the other staff at the shop.

It is very hard for a boss to tolerate being publicly abused in front of their team.  The staff handbook specifically says that swearing and aggressive language is gross misconduct.

Once we got the boss calmed down, we asked him to have a very quiet and private word with the chap to find out what was really going on.  (There was no one else in a managerial role in the business).   With a bit of help from us he found out that:

  • The chap’s wife had left him
  • He had three kids to get to different schools by bus (he had no car)
  • He had not wanted to make it public since he hoped she would return
  • He was really struggling to cope

Outcome

This particular boss did something many would find difficult.  He decided to give this man a final warning and allow him to continue to work in the business, despite the fact he feared he would lose face in front of his team.  He also altered his working hours so that he started after he had finished the school run, had a shorter lunch break and picked up the kids from school.

Four years later the same man took his boss on one side and said “You were so good to me that time, I really think you ought to know…..some of your staff are organising a lorry to back into the loading bay tonight and steal a major amount of stock…………”  As a result of this, they were stopped (and fired in due course).   The plan was to steal an amount of stock that would have bankrupted the business.

See our previous blog

To be continued ……

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Seeing Red

Sometimes the obvious decision isn’t the right decision for the organisation.  It is easy to get focussed on narrow issues, or rush towards a conclusion when a decision seems obvious.

We are all busy and no-one wants to make a big thing of a little decision.   We all need an intelligent friend to nudge us and say “This doesn’t make sense – check it out”  or “Are you so sure about that?”

A customer complained that a waitress deliberately tipped a jug of iced-water into his lap and stormed off.   The waitress had only been employed  for six weeks.  When asked about the incident she agreed that is what she did.  Her line manager was anxious to ‘get rid’ saying she was obviously volatile.

Seems like an open and shut case of gross misconduct – why take any time over this?  What would you do?

We asked our client to go back and have a quiet word with the waitress to find out what made her do what she did.  We discovered:

  • The customer was part of a heavy drinking group who all turned up at lunch time
  • They were making very crude sexual remarks about the girls red hair and its extent
  • She repeatedly asked them to stop, and they just laughed
  • The manager was listed as on duty, but was in fact absent from the site making a long telephone call to his girlfriend
  • This waitress was 17 years old, and left on her own in a busy restaurant  with no support

Now, we all know that two wrongs don’t make a right.  It is plain that waitresses shouldn’t throw iced water over customers.

But, the staff handbook said:

  • Customer service  – “If you have a difficult customer, do not try to deal with them yourself, but speak to your manager who will take over from there”.
  • Sexual harassment – “We do not expect you to tolerate inappropriate comments from customers.  Please let your manager know immediately if you experience any problems”.

Would any of this make a difference to your initial decision?

Outcome

The girl was given a tactfully worded warning not to assault customers, and told firmly to walk off the floor if such an incident recurred (which was never triggered because she knew what to do next time).  She went on to be a very successful Area Manager.

The manager was given a warning  for his failure to remain on site and his failure to properly support his trainee.  He was also retrained on supervision and equality.

All managers were reminded of the importance of remaining on site during service, and encouraged to properly support their trainees.

The incident was used as a case study in the organisation (with the girl’s consent) to show how sexual harassment by customers needs proper support from managers in the workplace.

And the customer was asked not to return to the premises.

To be continued ……

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Websitewww.irenicon.co.uk
You can follow Annabel on Twitter

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Red tape and fairness

This is the fifth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at ideas about what is fair

You don’t have to spend more than 30 years in employee relations and employment law to work out that there is more than one idea about what is ’fair’.   When we call upon the government to produce legislation that is ‘fair’, or even ‘fairer’, we are really being a little disingenuous unless we define what we mean.

Historic  fairness?

To a woman trying to get on the board who suspects her gender is an issue, fairness means getting a real shot at an open door.  Business women are divided over the issue of quotas and there is no agreement about whether quotas are fair or not.

Is fairness about remedying historic discrimination, or is it about what is happening now?

Simplicity and clarity?

To the small business owner, fairness means being able to run their business without being burdened by complicated rules.

Is fairness always simple, or can we be simple and unfair?

Consistency?

We all get irritated by reports in the press that show one criminal getting a fine where another for the same offence gets a prison sentence.  To us, consistency is part of fairness.

Some people find it offensive that soldiers injured in the line of duty get lower compensation than a woman who is not promoted because of her gender.

We all have some underlying idea of a scale or tariff, but we don’t necessarily agree about relative worth.

Relevant circumstances?

When we are on the receiving end of any kind of penalty, we do not demand that a strict tariff is blindly applied.  On the contrary, our idea of justice and fairness then includes the idea that our circumstances, even our intentions, must be taken into account.

  • The drunk driver begs not to go to jail for killing a child – “I didn’t mean it, I am sorry”
  •  The negligent manager does not want to take the  blame for injuries at work –  “We didn’t have enough resources, I was working long hours”.
  • We can feel that “I am not the only one to blame” is something that means we should not get any blame at all (as opposed to everyone involved taking their share).

We need to decide what the ‘fairness mix’ is before we start demanding more of it.  

Do you want to go for:

  1.  Standardisation/set tariffs/penalties – where everything is predictable; or
  2.  Appropriate decisions/penalties – which means there is an element of unpredictability and inconsistency

This is a dynamic tension in our entire legal system, not just employment law, between the two ideas of fairness. 

  • should people who are often late for work be treated the same, regardless of reason?
  • should there be special consideration for the disabled, for those who live on a dodgy bus route, or have small children, or
  • should it always be “three strikes and you’re out”?

If you believe in fixed penalties regardless of circumstances, you have a system that is consistent (but not necessarily fair on those who can’t comply).

Which would you rather be on the receiving end of?

We try in the UK to have it both ways.  It is the essence of our society … this compromise, this balance, this wobble … and it is what the media complain about all the time.

Why did that person get six months and that person one?

Why did that employer win a tribunal and that one lose?

What kind of world do we want to live in? 

If we can work out that, we can work out what kind of legal system we need to support it.   But we must be realistic.  Any system of legal rules and processes has some inherent problems, because:

  • people write the laws (with varying degrees of drafting skills!),
  • people try to explain the laws (with very mixed success),
  • people try to comply with the law (and others pay no attention whatsoever) and
  • people try to interpret the law when cases come to tribunal or court.

Sometimes we act like children, complaining when Daddy makes a decision we don’t like.  But we are adults in a society that needs to make adult assessments about what it values, what it penalises, what it sanctions, and how it judges those issues.

The boss who today wants a streamlined tribunal system and no uncertainty may be the drunk driver tomorrow wanting their life and record and all mitigating circumstances taken into account.

The price of “society” is accepting that there is more than one point of view.  It is not such a simple job to make things ‘fairer’ but we could start by acknowledging that there are competing standpoints.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation , click here for the third blog for our discussion on how government guidance notes affect us and click here for our fourth blog  where we look at the opportunity to simplify legislation

See our  previous blog

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk

You can follow Annabel on Twitter

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Reasonable but wrong?

Many areas of employment law rely on the idea of a ‘reasonable belief’.   A reasonable belief does not have to be correct.  I may quite reasonably believe something that turns out not to be the case.

 

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible.  Employers have to show that they reasonably believed this to be so.

A reasonable belief is arrived at after a robust process which means:

  • The individual whose job is at risk knows what they are accused of and has an opportunity to comment
  • The investigation is not tainted by prejudgement or bias
  • The decision is made having taken into account the individual’s explanation
  • There is a right of appeal

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible.  Employers can make up their minds on the basis of the facts they have before them.  That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be.  There is not much room here either for ‘gut feelings’.  Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for).

Gut feeling will be a reason to investigate, but it is not an investigation.

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking.  What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

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Filed under discipline and dismissal, employment law, employment tribunal