A Clarkson-type problem - what would you do?

17 Mar 2015

Mr Loud, an employee who produces a lot of sales for your organisation, reports himself to his line manager and appears to confess to having punched Mr Quiet, a junior colleague, during an argument at work, causing him to require hospital treatment, and to having called him a “lazy Irish ****”.

Q. Should you suspend Mr Loud pending an investigation?
A. Probably. Where violence takes place in the workplace it is risky to let the protagonists continue working together while you investigate. But you must investigate promptly.

Q. Should you also suspend Mr Quiet? 
A. There is no obvious reason to do so, unless he is at risk at work for some reason. As pre-disciplinary suspension can carry a certain stigma, there ought to be a very good reason for also suspending the victim if the alleged perpetrator has already been suspended.

Q. If you take a week to get round to interviewing Mr Loud as part of the investigation, is that a bit slow?
A. Yes, unless there were extremely good reasons why the relevant people weren’t available.

Q. Should you announce that Mr Loud has been suspended?
A. No, unless your organisation and Mr Loud are very much in the public eye, in which case you may decide that announcing the information is better than being accused of leaking it. In normal cases, every effort should be taken to ensure that the progress of disciplinary proceedings is kept private and confidential and knowledge limited to those who need to have it.

Q. If you decided to discipline Mr Loud, should you let him be represented by his lawyers at the disciplinary hearing?
A. He has no right to legal representation unless he can genuinely show that the possible disciplinary sanctions could prevent him earning his living in his chosen field because of consequent professional or regulatory sanctions. The fact that Mr Loud might suffer a loss of earnings or an interruption to his career would probably not be a strong enough argument.

Q. If you decide that Mr Loud is guilty (as confessed), should you dismiss him?
A. The big question. Looked at objectively, how many organisations would retain any credibility if they did not dismiss Mr Loud? But of course you must look (and be seen to be looking) at the usual factors:

  • consistency and your approach to previous “dust-ups” in the workplace;
  • Mr Loud’s previous disciplinary record;
  • any extenuating circumstances – was the work pressure on Mr Loud so great that he just exploded? Was he provoked by Mr Quiet?

Q. What if this just happens to have occurred at a time when, for business reasons, it would in fact suit you to part company with Mr Loud, particularly in a way that made him look rather bad?
A. Then you will be judged by whether your approach to his case is consistent. If yours is an organisation in which racial insults (or “banter”, as some people still call them) are common and people regularly have “dust-ups” or throw things at each other, then you can’t hold Mr Loud to account unless there was something particularly bad about his case. But if his case is extremely out of the ordinary then you should keep quiet about your ulterior motive and conduct an absolutely fair disciplinary process.

But remember, it may suit Mr Loud to jump before he is pushed, by which I mean claim constructive dismissal on the grounds of your disparaging statements about him and unfair treatment during the disciplinary process.

Q. Is the fact that Mr Loud reported himself to HR a mitigating factor?
A. Not really. Confessing because you know that there were eye witnesses and that because you are such a prominent figure you will be reported anyway barely seems a positive in the circumstances.

Q. If you find Mr Loud guilty of gross misconduct and dismiss him without notice, what are the risks?
A.

  • Unfair dismissal if you get your procedure wrong or your decision is not within the range of reasonable responses;
  • breach of contract if Mr Loud claims that you did not have sufficient grounds to dismiss without notice;
  • loss of restrictive covenants if Mr Loud can prove breach of contract – could be  important if he is attractive to competitors;
  • if Mr Loud’s dismissal was discriminatory, any stigma attaching to him as a result  could be taken in assessing damages for loss of earnings;
  • your ulterior motive might accidentally come out!

The views expressed in this article are the author’s.

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