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Employment Team on the road - warnings ahead

One of the best things about being part of the Ledingham Chalmers’ employment team is that we get the chance to appear at lots of events to discuss employment law.

Actually that’s not true.

Turns out talking about the law can be boring - even to lawyers. Who knew?

Even worse, an overly legal approach can be stunningly unhelpful when dealing with practical issues.

So the really great thing about these events is not the law: it’s chatting with business owners, managers and HR advisers about practical solutions to the challenges they face in the modern workplace.

Recent events have included our rolling in-house series of employment law cafés in Aberdeen and Inverness. We also had a trip to Fort William to meet up with our friends in the excellent Lochaber Chamber of Commerce.

Case law on relying on earlier warnings

The topics at these recent events included “warnings”. Not “don’t press that button” warnings. Instead warnings in the sense of sanctions issued to employees as a result of misconduct or other unsatisfactory behaviour.

One of the issues that came up was whether an employer can rely on an earlier disciplinary warning even if the time limit has expired.

We could have focussed on the case law.

For example there is a judgment that tells us once a warning has expired an employer should never take it into account when dealing with any future concerns.

There is also the case that suggests once a warning has expired an employer may be able to take it into account when dealing with any future concerns.

These two cases could give rise to a fascinating legal debate about whether the courts are correct to suggest the respective decisions are perfectly consistent; however, one of the benefits of speaking to people with real businesses and real challenges is that they live in the real world.

In the real world these cases are self evidently contradictory, irrespective of what judges may tell us.

Such inconsistency is extremely unhelpful to anyone who has to handle misconduct in Stonehaven, Spean Bridge or anywhere else.

Real world approach

What do you do if you wish to keep on the right side of employment tribunals while dealing appropriately with behaviour that may be damaging to your business?

The discussions at our events highlighted the risks of relying on “spent” convictions, but also looked at the ways these risks can be mitigated if you have the misfortune to be faced with a petty serial offender.

You know the type: the person who may check their behaviour when there is a live warning on file, but revert back to old habits as soon as sufficient time has passed.

Here are some of the practical tips we discussed.

  • If you are concerned about serial offending you may wish to make it clear in any disciplinary warning letter that, irrespective of the usual time limits, an earlier warning may still be taken into account if there is future behaviour of a similar type.
  • Check your policies to see if they could do with a bit more flexibility - it’s great to have clear guidance, but overly prescriptive and rigid policies don’t do anyone any favours.
  • Further, when dealing with any future unsatisfactory behaviour you could emphasise that it is not the earlier warning that is being relied on, but that the employee was told how seriously the employer took such behaviour.

I appreciate that any reliance on “spent” warnings is far from risk free, but in the real world are we not entitled to ask “just how many times do I have to tell you to stop doing this?”

Anyway better get some more trips in the diary. These events are a great way of keeping the employment team match fit.

In particular, they underline what we already knew: it’s not enough to know the law if we can’t apply it to the real world.

Kirk Tudhope

Inverness-based partner Kirk Tudhope heads the firm’s employment law team, he regularly represents employers, including private and public sector organisations, at employment tribunals.

Posted, 08 June 2017 by Kirk Tudhope
Categories: Employment