Assessing Risk in HR
I should start by saying that I am not an employment lawyer so if you need expert advise please do seek out the appropriate support.
It all starts with an allegation. The manager will come to you and say that someone in their team is not performing, or their attitude is terrible, or there is an allegation of misconduct i.e. bullying, swearing at a line manager etc. They want to take action but they’re not sure what to do.
When deciding how to move forward I have found that there is a generally a low risk option, a medium risk option and a high risk option. When I talk about risk I am referring to the risk of a claim being made against the company and a compensation payment being made. Your job is to make sure that this risk is minimised as much as possible.
It doesn’t mean that people can’t be disciplined or dismissed, you just need to make sure you are following the correct processes and policies to reduce that risk.
There are other risks around reputational damage, damage to the internal culture, damage to the engagement of the team. I am specifically talking about the risk of a claim here.
Let me give you an example of a high risk option (and something that I experienced early in my career)
In the security industry the security company would win contracts and then supply that location with security guards. If the client instructed the security company to remove the security guard immediately (maybe because they didn’t see eye to eye on something) rather than upsetting the client and keeping them onsite the security guard would be asked to leave. If there was somewhere else they could go then great, but 9 times out of 10 there wasn’t another location nearby so we would dismiss the security guard for SOSR (some other substantial reason), i.e. we knew it was an unfair dismissal but there was little we could do if we wanted to keep the client happy. We had no other option. We would receive a lot of tribunal claims for unfair dismissal which we then looked to settle.
So when advising a manager on the best way forward you should consider talking them through all the options.
Low Risk Option - From an employment law perspective there is normally an option to ‘do nothing’ or just have a conversation to tell them that something isn’t ok. It means that there is no dismissal, so no risk of a tribunal claim. The higher risk around this normally comes with the impact that the decision to do nothing has on the wider team. If, for example, you don’t tackle underperformance issues the team may become quite frustrated and there own performance may start to suffer.
There is normally low risk to moving forward with disciplinary / dismissals if the individual has less than 2 years service, because they can’t make a complaint for unfair dismissal with less than 2 years service.
We see people’s employment being terminated during or at the end of the probation period (for a number of reasons) with very little formal process being carried out. This is low risk because they can’t make a complaint for unfair dismissal. The risk increases if there is a potential claim for discrimination, which they can claim for from day one of employment. This means that if someone has a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.) and they feel the dismissal is linked to one of these things up then your risk may go up.
Medium Risk options - If a decision is made to follow the correct process and then employment is terminated I always say to managers that there is a risk of a claim being made. Unless there is a settlement agreement in place where the employee has signed away their employment rights, then a dismissal could always result in a tribunal claim being made. The issue you have is that the person who has been dismissed will be feeling quite aggrieved and (as it stands today) there is no cost to submit a tribunal claim so they feel they have nothing to lose. So the best thing you can do is make sure the processes is followed completely, both in terms of the actions that are taken but also in the decisions that are being made. This will lower the risk of a successful claim being made. Successful meaning they receive some financial award.
High Risk Options - These scenarios are normally where you skip stages of the process, the decisions that are made cannot be substantiated. In employment law there is a lot of mention around being ‘reasonable’. So, the decision to dismiss must be reasonable and proportionate to the allegation that is being made. For example, if someone left a fish sandwich in the fridge and upset lots of people it probably wouldn’t be reasonable to terminate their employment because of it.
It’s impossible to discuss every single scenario in this one article, as we all know there is never a dull moment in HR and we continue to receive allegations we’ve never come across before. Your first question to ask yourself is, what are the options in front of us. Then place a level of risk next to each one.
Do nothing
Do something
Take immediate action
If you ever find yourself in a situation and you’re not sure what to do, head over to the Facebook group and ask the question. Chances are someone has dealt with something similar before.
Resources to support your development:
ACAS has some really easy to understand guides on everything employment related so I would definitely recommend checking them out - https://www.acas.org.uk/disciplinary-procedure-step-by-step/step-4-the-disciplinary-hearing
Daniel Barnett is an employment lawyer who sends out some fab updates. You can subscribe to his mailing list here >> https://www.danielbarnett.co.uk/
Simon Robinson from Robinson Ralph shares some really interesting case law updates. You can follow him on LinkedIn by clicking here >> https://www.linkedin.com/in/simonajrobinson/