Suspending staff during the disciplinary process

During disciplinary processes all employers have to consider whether or not they should suspend a person whilst the disciplinary process takes place. As with most things in employment law, if employers use a certain degree of common sense and act reasonably then they are far less likely to land in hot water.

Is suspension allowed for in the staff handbook or disciplinary procedures?
It is always a good idea for any employer to allow themselves the options of suspending an employee in their own disciplinary procedures. In this way, if suspension becomes necessary to consider, an employee is less likely to be taken by surprise and indeed can be referred to the said policy.

In what circumstances may it be necessary to suspend an employee?
Clearly, this will need to be considered on a case by case basis. However, it will not necessarily depend upon the seriousness of the incident although this will always be a consideration. The main issue will be is a suspension necessary.

If a case involves an investigation that may be hampered if the employee is still within the workplace then this is an obvious case for suspension. The same will apply if there has been an assault and the people involved all need to calm down. If there is a risk in the employee staying at work i.e. they have allegedly been stealing whilst in their role then again suspension will often be necessary.

How long should the suspension last?
The suspension should last no longer than is necessary and should be reviewed on a regular basis. It is always in the interests of all concerned that investigations are concluded as quickly as possible so that the process can move on to the next stage if necessary. It may therefore be the case that once an investigation has been carried out the employee can, in certain circumstances, be allowed back to work. It is never a good idea to suspend because dismissal is very likely as this may be seen as prejudging the issue.

What should an employer do?

• Have policy documents that allow for suspensions;
• Use the right on a case by case basis and explain in writing why suspension is appropriate;
• Explain in writing that suspension is in no way a prejudging of any issue and is not a punishment;
• Review the decision to suspend on a regular basis and, if it is to continue, explain why in writing;
• Keep the period of suspension to a minimum and do not delay investigations;
• Keep in touch with the employee i.e. by sending copies of staff newsletters or memos etc so that they still feel involved as an employee rather than having been cut adrift from their workplace;  
• Above all be reasonable, consistent in your approach and prepared to justify your decision.

We hope that you have enjoyed this blog. This is the thoughts of the author and should not be relied upon for any particular employment issue. If in doubt then always seek legal advice. If you would like to leave a comment then feel free to do so.

For more information on employment and HR issues please contact us at info@chilternsolicitors.co.uk or visit our webiste at www.chilternsolicitors.co.uk

Jeremy Clarkson - dismissed for gross misconduct or not as the case may be

We have all read about Jeremy Clarkson and his apparent 'dismissal' by the BBC for the unfortunate incident with a fellow employee. What however remains unclear is whether JC was actually formally dismissed by the BBC and, if so, for what reason.

The quote from Lord Hall to the waiting press was that the contract of JC would not be renewed. It would appear that JC and his two co-presenters all have fixed term contracts that end at some point this year. The contract of JC appears to be due to end within the next few days in any event.

The non-renewal of a fixed term contract is still technically a dismissal but it is a very different situation from a dismissal without notice for gross misconduct. If JC was not dismissed for gross misconduct and it is simply a case that the BBC will allow his contract to come to an end in the next few days then this may have serious implications for the BBC. If another person faces similar allegations in future and is dismissed for gross misconduct then that employee may have a potential claim for unfair dismissal on the basis that their case has  been dealt with in a manner inconsistent with other decisions. This can potentially be a way in which any employee can successfully win a claim for damages for unfair dismissal.  

Whether or not we ever learn the whole truth behind this 'dismissal' may become apparent in the forthcoming weeks. What is also clear is that no employer can allow any employee to continue to work for them once such an incident has taken place. Bearing in mind that the BBC is funded by all of us we perhaps deserve to know whether this is a case of summary dismissal or a fixed term contract being allowed to conclude.

The main thing that smaller companies can take from this event is that you need to be consistent in your approach when disciplining staff. It can never be a case of one rule for one and one rule for another. If you do adopt an inconsistent approach then you can expect little sympathy at a Tribunal hearing. What the BBC can learn from this is that they really need to be a little clearer on what happened and whether there has been a dismissal without notice or alternatively will JC continue to be paid under his present contract until it expires. This does involve taxpayers money after all.

If you have any comments to make upon this blog then please feel free to leave them. To discuss any employment or HR matters please contact us at info@chilternsolicitors.co.uk or visit our website at www.chilternsolicitors.co.uk.

Amending a contract of employment

Amending a contract of employment has always proved to be a very difficult area for both employers and employee alike. Many employers simply do not know where to start when seeking a variation of terms and, similarly, many employees are unaware of their rights.

The legal position

A contract of employment is no different to any other type of contract. It cannot be varied unless both parties expressly agree to the variation or impliedly agree. It is this second area that often causes difficulties.

What should an employer do?

If an employer needs to vary the terms and conditions of employment of employees then they should sit down and discuss the matter with the employees. They should explain the reason behind the variation to the employees and try to seek some form of agreement to the variation. If a variation is agreed then this should be so recorded in writing and the contract of employment and/or the staff handbook should be amended to reflect the change. If the employer issues new contracts of employment then these should be signed by the parties and a record should be kept to ensure that all employee have signed and returned their new contracts.

What is agreement cannot be reached?

If agreement cannot be reached then the employer needs to make a decision as to whether to proceed with the proposed amendments or not. If they decide to proceed then they can give notice to terminate the old contract of employment and offer to re-employ  the employee on the new terms and conditions. This is not without its risks because the employee can dig their heels in and can even take the employer to a tribunal.

If the employee decides to remain with the employer then the employer needs to make the employee aware that it is a condition of them remaining with the employer that the employee accepts the new terms and conditions. The employee can make it clear that they do not however accept the terms. In this case, clearly things cannot continue indefinitely. One side will have to bring the contract of employment to an end or accept that the variation to the contractual terms will remain in place.

What are the risks for employers?

If the variation has an immediate impact upon the employee such as a change of hours or a reduction in pay then things will be more straightforward. The employee will have to quickly decide whether or not to accept the new conditions. He will be paid less or have to work different hours immediately and will have little if any control over this. Therefore, he will either have to accept the change or work under protest. However, if the employee continues to work under the new terms and conditions, he will, after a certain period of time, be deemed to have accepted these new terms. This is agreement by implication as the employee has worked subject to the new terms and conditions and will therefore be deemed to have accepted the terms.

What if the change to the terms and conditions has no immediate effect?

If the change to the terms and conditions has no immediate effect then the position is slightly more complicated. For example, if an employer wishes to change a redundancy process that is part of the terms and conditions or wants to add a restrictive covenant then there is no immediate effect upon the employee.

In the case of Selectron Scotland Limited v Roper it was decided that, if there was no immediate impact upon the employee, as a result of the change, then the employee may not have accepted the contractual change.

However, in the case of Wass v Science Museum Group, an employee was deemed to have accepted a change to her terms and conditions by implication when she continued to work under the new terms and conditions for a number of years despite the fact that she had not accepted the change at the time that it was made.

Summary for employers

• When considering changes to terms and conditions consult with staff, explain the reasons for the changes and try to seek agreement.
• Record any changes made in writing and update employee documentation and records.
• If agreement cannot be reached make it clear to employees that their continuing employment is conditional upon them accepting the said changes.
• Always act reasonably as an employer. The first thing that most tribunals will look at in any case is how reasonable was the employer.

This blog represent the view of the author and should not be taken as specific legal advice in relation to any employment situation. If in doubt always seek legal advice.

We offer a wide range of employment services to companies including a specific HR system for all sizes of companies. For more information see our website www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk. Please feel free to call us on 01582 439795.

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