I’m conscious we’re pushing our luck with yet another footballing piece (I promise we’ll diversify our sporting range), but developments on the pitch had me thinking about a perennial problem which many of us face when dealing with employee misconduct.
In the same week, Newcastle United were praised for taking swift disciplinary action against their manager Alan Pardew after he head-butted an opposition player, while West Bromwich Albion were criticised for waiting until after a Football Association disciplinary hearing to suspend their player Nicolas Anelka for his infamous ‘quenelle’ gesture in December. From a reputation angle, I can see why the decisions have been received as they have – but who is in the right from a legal perspective?
In scenarios where an employee’s conduct is being considered by an external body or indeed, investigated by the police, should an employer push ahead with their own internal procedures or wait for the outcome of the external investigation? Are commentators justified in criticising West Brom for failing to discipline Anelka quickly or did Newcastle take an unnecessary legal risk?
There are plenty of reasons why an employer may want to wait for the outcome of an external body’s procedures before taking their own action. The most obvious motivator is avoiding the uncomfortable (although not necessarily fatal in legal terms) situation where the employer’s own disciplinary decision is directly contradicted by the external body. The danger of conflicting decisions is obviously greater when the nature of the employee’s conduct, and even whether it constitutes misconduct, is unclear.
This can probably go a long way in explaining the difference between Newcastle’s and West Brom’s responses: while there can be little doubt that Alan Pardew’s head-butt constituted employee misconduct (and was admitted by Pardew), it took a two-day hearing and a 35-page independent report to decide whether Anelka’s gesture was in fact abusive, indecent or improper.
Which brings me on to a further reason to wait – it may be the case that the third party has better resources to investigate such matters. In some cases, indeed, it may potentially jeopardise the external investigation (particularly in a criminal context) if the employer has gone in first. However, an employer should nonetheless be careful to ensure that, regardless of an external body’s decision, it carries out any necessary (internal) investigations in accordance with its own procedures and – crucially - reaches its own (rather than relying on the third party’s) decision. Failure to do so may render any action unsafe and potentially land the employer in trouble in tribunal.
Good things don’t always come to those who wait…
Various difficulties can arise if an employer takes the line of least resistance and chooses to wait for an external body’s decision before taking disciplinary action.
There is the suspension dilemma. If the employer suspends the employee, they are left paying a salary for an indefinite period of time while they await the external body’s action. The employer has no control over how long the external body’s processes will take. On the other hand, if the employer does not suspend the employee, it can potentially make it harder from a legal perspective to justify in the future even if further evidence comes to light.
The employer does not want to leave itself open to arguments that it has somehow waived the employee misconduct. At the very least, they should write to the employee and make it clear that there appears to be a serious issue, and that whilst it is the current intention to wait until after the external body has considered the matter, they reserve the right to investigate internally and/or start disciplinary proceedings at any time.
If the external body’s decision takes a prolonged period of time, the employer should be prepared to re-visit its decision to delay its own processes. Bear in mind also that where an employee’s reputation and potentially their livelihood are at risk, the stakes are high and injunctive action may be a possibility, either to bring things to a head and try to require the employer to go through its own procedures, or indeed to delay those procedures pending the external investigation – whichever the employee feels may best benefit their cause.
If the employee is not suspended and continues working, it may feel as though it is more difficult to dismiss them fairly for the misconduct at a later date. An employee may argue that, given he or she has continued working with no difficulties, with the employer’s full knowledge of the alleged misconduct, dismissal becomes outside the range of reasonable responses to that misconduct. I’m not entirely persuaded by this, provided the employer has made it very clear that it hasn’t ‘accepted’ the employee’s behaviour, but I can see that it could feel harder to dismiss or take other action after time has elapsed and the employee has remained happily in situ in the interim.
In some circumstances, there is a reputational risk to consider. West Brom’s delay in dealing with the Anelka situation drew a great deal of criticism and, apparently, cost them their shirt sponsorship deal with the property website Zoopla. As we all know, that of itself shouldn’t be a relevant factor in how to handle an employment issue, but in reality whilst not all of us have the same high-profile commercial issues at stake, reputation and how a situation will look to the wider world and to immediate stakeholders is always going to be a key issue. For a school, for example, it can be hard to manage and hold off parental pressure if there is public awareness of an alleged issue relating to a teacher. Situations like this can get very toxic very quickly and good PR support coupled with clear-headed decision making are critical in navigating a way through.
Guilty but not guilty
Finally, remember that it does not necessarily make a dismissal decision unfair if an employer’s finding differs from that reached by an external body. A dismissal will be unfair if it is outside the range of reasonable responses that an employer could make to the situation at issue, taking into account considerations including matters known by the employer at the time. It is also a balance of probabilities test.
An external body will very probably be adopting a different approach, in seeking to decide whether, for example, a breach of their own regulations has occurred. The police will have an eye to the ‘beyond reasonable doubt’ test applied in the courts which requires a higher level of proof. So, there will be times when after a long police investigation, no charges are brought – but that doesn’t mean an employer is unable to dismiss fairly for the same alleged offence, provided it reaches its own decision based on its own reasonable belief. Certainly, though, the scrutiny will be that much more acute in a situation where an employer goes ahead with a dismissal in circumstances where an external body has either exonerated the individual or found a lesser kind of sanction to be appropriate – from a psychological perspective the employee will have breathed a metaphorical sigh of relief at the external finding and will be proportionately more likely to challenge a more hard-line decision by an employer.
Damned if you do, damned if you don’t
Whichever decision an employer takes in these situations, there is a potential for criticism and there is certainly no right or wrong answer – much will depend on the facts (which even as I write it sounds like a typical lawyer’s disclaimer). Certainly, wherever possible there is mileage in collaborating as closely as may be possible with the external body, and at least seeking whether there is scope to have the benefit of using the material uncovered in their investigations, if not being tied to the decision they reach. Being clear with the employee and retaining the ability to adapt one’s approach as the situation unfolds are important starting points.
Meanwhile, employers and employment lawyers are left shaking their heads at the idea that a gross misconduct dismissal doesn’t seem to have been within the range of reasonable responses considered by Newcastle in circumstances where their manager holds his hands up to a physical assault carried out in full view of the TV-watching nation. Surely the fact that there’s rumoured to be no break clause in his eight year contract has nothing to do with it.