13/04/2015

By Jonathan Whittaker, Senior Partner, SAS Daniels


OK, there’d be little point in me hauling over the coals of the BBC’s dismissal of Jeremy Clarkson. However, compared to most employee disciplinary and dispute situations, this one has been so high profile that it raises a really important point, which all employers need to take heed of. This point is that in a dispute situation, getting to the bottom of what actually happened so that you can make the right decision, is absolutely vital.

This process is what us employment lawyers call ‘making findings of fact’. In the Clarkson case, the prolific media interest and reporting alongside the employee’s celebrity, could easily have skewed the BBC’s judgement of the facts. Thankfully it took the right course of action, but in many standard disciplinary situations employers fail to establish the facts and the wrong course of action can bite them back!

Here are six steps that employers should follow when getting to the bottom of a dispute.

1. Speak to everyone involved – Everyone present needs to be interviewed. Discrepancies and inconsistencies need to assessed and ironed out as far as possible, so that as the employer you can decide what actually happened. Only then can any thought be given as to the appropriate disciplinary penalty.

2. Review all the options – It would be easy to think that your only options are ‘take no action at all’ or ‘dismiss the employee’. In black and white cases maybe, but it could actually be more complex than this and all options should be considered. For example, a dispute may involve two employees, let’s say a manager and a subordinate. Both may be at fault but you’d need to consider the behaviour in relation to the roles they’re employed in. For example, you may take the option of giving the manager, who you expect to set an example, a final warning, whereas the subordinate gets a first written warning.

3. Aim to be reasonable and fair in your judgement – So an employee you trusted has behaved improperly. How does this make you feel? Betrayed and angry would be obvious reactions and it would be easy to let those feelings cloud your response and judgement. You could even end up creating risks by not going by the book in how you deal with the situation. It’s vital to aim for the outcome which represents a ‘reasonable decision of a reasonable employer’.

4. Consider the implications of your decision – You should think about who else this will affect in addition to the employee in question. Obviously if the dispute involves another employee then they are top of the list. However, what about the rest of your staff? What about clients, customers and partners and the reputation of your business? Certainly in the Clarkson case the ripple effect of a ‘wrong’ decision could have been huge.

5. Assess the risks – You should also assess the risks to your business, such as loss of custom or employee retention. They may not be the most important factors but they are considerations. If another employee is involved, claiming mistreatment, you should focus on the risks of making the wrong decision. If you fail to dismiss an employee who is in the wrong, the other party could be very unhappy, resign and then claim constructive dismissal, leading to further damage and cost.

6. Get 3rd party support – Going through this process alone can be very tough, even if you have the support and views of your management team. Professional practical advice from a third party is invaluable in helping you take the right approach, know your rights as an employer and objectively steer through the process to a fair and least damaging outcome.

It’s true that very few businesses are likely to have a Clarkson case on their hands, but all employers should consider that disputes are tricky to navigate, potentially damaging and also time consuming, especially when you still have the business to run!