The relationship between employer and employee on a rural estate is usually more intimate than in a commercial setting. Gardener, gamekeeper, cook or cleaner may have worked for the family for decades and live in an estate cottage or even in the main house. This means that it can be particularly difficult to know what to do when there are concerns about an employee’s conduct. Here are our top dos and don’ts in cases of employee misconduct.
1. Have clear rules
Setting clear rules from the outset helps employees to understand what is expected of them and helps employers to act fairly and consistently. The rules could be set out in a disciplinary policy, or even the employment contract itself, and should cover anything relevant, from timekeeping to use of estate equipment.
2. Consider whether to take formal or informal action
Many conduct issues can be resolved informally with a quiet word, particularly where the employee has committed misconduct for the first time or where the matter is not too serious.
Even if informal rather than formal action is taken, be sure to keep a written record of any issues that arise and how they are dealt with.
3. Carry out a fair investigation
A fair and balanced investigation should be carried out before any formal action is taken. The nature and scope of the investigation will depend on the seriousness of the matter and the more serious it is, the more thorough the investigation should be. The investigation should be approached with an open mind, rather than being a witch hunt. You should interview the employee and gather all relevant evidence (including evidence in the employee’s favour). Consider your findings on the facts, before deciding whether there is a case to be heard. If matters are to be taken further, you must first hold a formal disciplinary meeting.
4. Follow the Advisory, Conciliation and Arbitration Service’s Code
The ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) provides practical guidance for handling disciplinary situations in the workplace and should be followed. Failure to comply is likely to mean that any dismissal will be unfair, and employers who do not follow it could be ordered to pay up to 25 per cent additional compensation at tribunal.
As an employer, it is worth noting the following:
- You should set out the allegations in your letter inviting the employee to the disciplinary meeting and provide them with any evidence that will be considered in advance.
- If you think the employee’s behaviour may be serious enough to result in dismissal, you should make this clear in the letter.
- The employee has a right to bring a colleague or trade union representative to the disciplinary meeting and you should make them aware of this.
- You should give the employee an opportunity to put their case in response, at the disciplinary meeting, before making any decision.
If a disciplinary sanction is confirmed following the formal meeting, the employee must be informed of their right to appeal in the decision letter.
If you have your own disciplinary procedure it must adhere to the ACAS Code as a minimum and you should provide a copy to the employee.
Employees with less than two years’ service do not have unfair dismissal rights, so technically you could bypass a formal dismissal process for those employees. However, it may be sensible to follow one anyway, particularly where there is a risk of a claim for which no qualifying period applies, such as discrimination or whistleblowing.
1. Turn a blind eye
Do not ignore conduct issues in the hope they will go away, as they usually only get worse and cause discontent within the team. Concerns about an employee’s conduct should be dealt with quickly and fairly, but in the right way and in accordance with the law, to minimise the impact to the estate and avoid potentially costly tribunal claims.
2. Confuse capability issues with conduct issues
While the ACAS Code applies to both capability and conduct issues, the two are treated slightly differently, and it is therefore important to differentiate between them.
If an employee is not meeting the expected standards of performance for their role, this is likely to be a capability issue and some sort of performance management process would be required. This could include setting goals and specific coaching.
A conduct issue is likely to arise where an employee either refuses to do certain things or does something unacceptable or inappropriate. Should an employer uphold allegations of misconduct following a disciplinary meeting, the most common sanctions are warnings or dismissal.
3. Rush to suspend
Suspension will usually only be appropriate where this is permitted in the employee’s contract and in cases of serious misconduct or incompetence, where the employee’s continued presence poses a threat to the business of the estate or other employees, or would render an investigation impossible. A knee-jerk decision to suspend could give the impression that the disciplinary process has been pre-judged and be a breach of trust and confidence.
4. Apply rules and procedures inconsistently
Failing to follow procedures properly or acting inconsistently is likely to make any subsequent dismissal unfair. Additionally, cutting some employees slack can significantly impact the morale of other employees, lead to grievances being raised or, even worse, amount to discrimination.
Employee misconduct usually occurs unexpectedly, emotions often run high and things can move very quickly. Having a clear set of procedures ready to hand can make the situation less stressful for everyone involved.
If you require further information about anything covered in this blog, please contact Serena Nicholls or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2023