By Daniel Hunter
Employers have got to be very, very careful what they say about their employees and to whom, Michael Slade, Managing Director of employment law specialist Bibby Consulting & Support, has warned.
Slade was speaking in the wake of the public criticism of several high-profile figures - including G4S's chief executive Nick Buckles, Barclays Bank's Bob Diamond and the Border Force's Brodie Clarke.
"While these high profile cases hit the nation's headlines for millions to see, open criticism of employees in much smaller businesses can also pose a real risk," Slade explained.
"If there are performance or conduct issues, you clearly need to deal with it professionally and properly. But that certainly must not include communications to colleagues who don't ‘need to know'."
He said that the people who spoke out in the G4S, Barclays and Border Force cases might have had good intention - and reports do suggest that there have been some fundamental mistakes and issues, for which someone must be accountable.
But if employers in small businesses start to speak about problems with colleagues, this can easily be seen to undermine the individual, to the extent of making their position untenable. This in turn can lead to grievances and potential tribunal claims.
"If somebody says something in the public arena which is likely to break the relationship of trust and confidence between employee and employer, then that could be deemed as grounds for constructive dismissal by an employment tribunal," Slade said.
"Managers should always be vigilant in terms of what they say to whom about whom. We can all become frustrated with performance or conduct issues, and there is often a temptation to share those frustrations with others. But if you really don't want to spend the time and effort in dealing with grievance and worse, then it is a temptation best avoided!
"It's simply a matter of confidentiality and applying a sensible amount of discretion to avoid this happening. When addressing negative performance or conduct issues, make sure that it is always done in private. And never relay confidential information or personal opinions to that employee's peers or direct reports.
"While in these high profile cases the companies may be in a position to afford a commercial compromise settlement when the employee in question exits the business, I doubt very much that most SMEs would welcome such a pay-out."
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