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That's not fair!

04 Dec 2018

The importance of managing staff consistently – legal tips for those who manage HR

A key issue in managing staff is the need to be consistent. I often present the following scenario at workshops.

Sam, a long serving and senior employee with an unblemished disciplinary record, becomes engaged, goes out at lunchtime to the pub with work colleagues to celebrate, comes back the worse for wear and is unable to work that afternoon.  Sam is sent home.  Should any disciplinary action be taken?

The question usually causes surprise. The workshop delegates understand the need to ensure that Sam gets home safely but cannot see the relevance of any disciplinary action, especially having regard to Sam’s unblemished work record and the fact that the celebration was for a major life event. After all, there may have been many times when Sam has gone above and beyond the contractual duties such as working through lunch, staying late or coming in early. At most, the delegates consider that an informal warning may be in order.

I then disclose that the scenario appeared on the website of ACAS, the Government’s Advisory, Conciliation and Arbitration Service, with the recommendation that a full disciplinary process be undertaken with a suggested sanction of a written warning, if not a final written warning. This creates a surprised, if not an unbelieving reaction, amongst the delegates, compounded when I tell them that I agree with ACAS for the following reasons:-

  • The employee had a contract to perform duties for which a salary is paid and by Sam’s actions, these duties were incapable of being performed;
  • Drinking alcohol at lunch time to excess was irresponsible and breached a duty of care that Sam owed to the employer. It also set a bad example to junior employees;
  • A serious sanction needed to be imposed so that if another employee attended work drunk, the employer can be consistent in its disciplinary treatment.

Concentrating on the last point, let us consider the scenario of another employee, Pat drinks heavily at lunch time because a particular football team has won a tournament.  Pat returns to work incapable of performing afternoon duties. A reasonable response would be to initiate a disciplinary process with a sanction of more than an informal warning and at the very least a written warning. But if no disciplinary action has been taken against Sam, Pat is likely to feel aggrieved. ”That’s not fair, you didn’t do that to Sam, you shouldn’t do that to me.”

Leaving aside the fact that disciplinary processes should be confidential which, in my experience, is more observed in the breach in these circumstances, the attempt to distinguish between the two scenarios on the basis that Sam’s reason for drinking was an engagement, whereas Pat’s drinking was sports related, is a distinction which is too fine to have any substance - let’s not forget there are plenty of people who consider a football team victory a better reason for a lunchtime celebration than an engagement!

In every organisation, there is a place where employees gather to talk about management. It may be at the water cooler or in the pub after work. In that conversation, employees want to know that they are working for a company that is firm but fair in its management of the workforce. Inconsistency in management decisions can lead to resentment and loss of morale. 

Sam may consider a written warning or indeed a final written warning to be harsh but there are times in managing a workforce when a wider view has to be taken in the interests of consistency. Better that the workforce knows in advance the management’s attitude towards lunchtime drinking and employees’ responsibilities to carry out their contractual duties..

Finally, if you want to know why HR needs to ensure that Sam gets home safely, please contact me.

Alan Finlay, Consultant in DMH Stallard’s Employment Law Team

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