‘Confusing’ policies led to unfair dismissal - A lesson in clarity?

Liberty Living plc v Reid


Overview

An employee summarily dismissed for drinking alcohol off work premises during working hours was unfairly dismissed. His employer’s policies (one dealing with alcohol and drugs and the other with disciplinary issues) were inconsistent and had only been drawn to the employee’s attention after his dismissal.

Liberty Living (LL) owned and managed various student properties where Mr Reid worked as a maintenance caretaker. LL had two employment policies which related to alcohol consumption during working hours. The Disciplinary Policy referred to the possibility of summary dismissal if the employee is found to be ‘under the influence of alcohol’ during working hours, which amounted to gross misconduct. Its Alcohol and Drug Policy stated that ‘consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace is prohibited’ and that ‘violation of this policy can result in disciplinary action up to an including discharge’.

Mr Reid was caught by LL’s general manager drinking in a local pub during working hours. He was given a letter summoning him to a disciplinary hearing for ‘being under the influence of alcohol during working hours’. A copy of LL’s Disciplinary Policy was enclosed with the letter but its Alcohol and Drugs Policy was not. At the end of the hearing Mr Reid was told he was being summarily dismissed, the reason given being that consumption of any alcohol at all during the working day constituted gross misconduct. A subsequent dismissal letter then stipulated that he was dismissed both for having had an alcoholic drink during working hours and for being under the influence of alcohol during working hours. Mr Reid appealed on the basis that he’d only had a pint of lager shandy and that he had not been ‘under the influence’. His appeal was dismissed because he had consumed alcohol during working hours.

By a majority, a tribunal upheld Mr Reid’s unfair dismissal complaint because he’d been unaware of LL’s Alcohol and Drugs Policy and the policy was, in any event, confusing. LL was patently unclear as to what its policies actually were and had created confusion at the disciplinary hearing by referring to both a prohibition on being ‘under the influence of alcohol’ and against any ‘consumption of alcohol’. LL appealed on the grounds that the tribunal’s decision was perverse and that it had substituted its own view for that of a reasonable employer.

The EAT rejected LL’s appeal and upheld the finding of unfair dismissal. It was not open to LL to say that, although it had charged Mr Reid with being under the influence of alcohol, that covered a situation where he had had a single alcoholic drink. Not only did LL not apply its own policies but it clearly didn’t know what they were. The Disciplinary Policy said that it was only being ‘under the influence’ during working hours that could be categorised as gross misconduct leading to summary dismissal. And while the Alcohol and Drugs Policy stated that consuming alcohol while on company business or in the workplace was not allowed, it was not expressly designated as gross misconduct. LL’s cause was not helped by the charges it brought against Mr Reid being different from what he was actually dismissed for.

Here are some suggestions as to what HR can learn from this case:

-Have policies which are consistent and not contradictory.

-Avoid phrases such as ‘under the influence of alcohol’; it’s pretty meaningless unless you are going to spell out precisely what it means.

-Make sure policies are brought to the attention of staff, e.g. get them to sign and date that they have received, read and understood them.

-Make sure your managers know what your policies say – in the case above the dismissing manager wrongly told Mr Reid that because he had had a drink during working hours, this was gross misconduct; neither policy actually said this!


Liberty Living plc v Reid

Republished with the kind permission of Craig Gordon, HR Bullets

Flexible working now the norm

Four fifths of UK companies are now offering their staff flexible working, according to Flexible Working Goes Global from Regus.

But trust remains a major hurdle for many companies with over a third of UK businesses only offering this privilege to senior staff. Those companies embracing flexible working practices are reaping major benefits: 40% report improved staff productivity; 67% say staff achieve a better work-life balance; and 55% acknowledge that flexible working costs less than conventional, fixed office working.

Flexible working can incorporate office hours and/or location. Indeed, a quarter of respondents pointed to the recruitment benefits of mobile or home working, claiming flexibility in location helps them access a wider talent pool and attract staff based in remote areas. Rising oil prices are likely to further focus attention on remote working in the coming months, as UK employers face pressure to help commuters reduce their monthly transport costs.

The key findings of the research as it relates to the UK are:

83% of firms offer flexible working, whether related to office hours or location
38% only offer flexible working as a privilege to senior staff
proportion of firms reporting that flexible working
costs less than fixed office working (55%)
improves employee productivity (40%)
enables a better work-life balance ( 67%)
is more family-friendly (81%)
makes staff more motivated (36%)
helps attracts a wider talent pool (21%)
in terms of location (remote working) enables them to employ valuable people that live in more remote parts of their country (24%)
is pivotal in achieving business scalability as we emerge from recession (22%)
encourages staff to be more self-sufficient and pro-active in their work (37%)

Article published on this blog and 'Britain's Got HR Talent' Linkedin group with kind permission of Craig Gordon of www.HRBullets.co.uk

Corporate learning and development priorities 2011

Investment in HR as a discipline has fallen dramatically in comparison with last year but investment in people development as whole remains a top priority according to Corporate Learning Priorities Survey 2011 from the Henley Business School. Talent retention and managing change are the other two top priorities.

While developing the HR team is not seen as a priority, 74% of respondents said that developing people to achieve growth and competitive advantage is paramount (up from 69% in 2010). Retention of talent is the second highest priority for development activity with 73% identifying it as crucial, a rise from 63% last year, and concern about managing change, reflecting a continuing volatile economy, came third with 64% naming it as a learning objective, compared with 60% in 2010.

The survey, of 2,500 HR and non-HR senior managers from private and public sector organisations employing in excess of 500 people, captures a snapshot of learning and development priorities at a time when public sector organisations are implementing severe cuts and the private sector is facing increased competition and having to do 'more with less'.

Despite the apparently positive attitude towards development as a whole for next year, there seems little appetite to focus on HR capability with the development of HR teams plummeting in the priority list from 34% in 2010 to just 3% in this year’s survey. HR and non-HR respondents also have a very different view on Learning and Development spending this year with 24% of respondents in HR roles saying they will spend more in 2011 as against 32% of those in non-HR roles.

Nick Kemsley, the co-director at Henley's Centre for HR Excellence, believes that while focus on HR capability may have become a victim of the times it is vital that HR continues to develop and transform in 2011. He believes HR functions have to address gaps in their content, structure, process, system and skills to ensure they are meeting the needs of organisations - or risk being side-lined. He says: ‘This change must happen quickly. HR will need to live the values of the post-downturn world – speed, pragmatism, tangibility, impact – in its own evolution, or else risk being left isolated in a business world which has to get on with things with or without its help. If HR can pull this transformation off, then the kind of work which happens within the function will be genuinely business-critical and offer both enormous opportunity and challenge for those who want to, and are able to, work like this. HR would be a place where a connection with business strategy and performance was immediate and tangible’.

Other key findings of the research include:

Attracting new talent - 64% said this was important, compared to 52% in 2010
The development of middle managers remains significant with 43% naming this as a first or second priority

Just over a third (35%) of respondents place developing senior managers in first or second place, while 31% identify developing the management skills of new leaders
The overwhelming majority of respondents will be doing more, rather than less, learning and development activity in 2011 – specifically many will be ‘doing it for themselves’ with 62% of respondents saying they would be doing more informal knowledge sharing between peers and 59% more mentoring between peers in 2011 than in 2010

Article published on this blog and 'Britain's Got HR Talent' Linkedin group with kind permission of Craig Gordon, www.HRBullets.co.uk

Use of compromise agreements increases significantly

More than half of employers surveyed by the CIPD say that their use of compromise agreements has increased in the last two years, with more than two-thirds saying they use such agreements, even in the absence of an existing claim. This is one of headline findings of the CIPD’s Conflict Management survey. The median compensation payment was £10,000 but one in five employers reported that the typical payment was £25,000 or more.

Albeit on a relatively modest sample size of 206 organisations with an average number of staff in each of just over 2,000, the CIPD’s survey reveals that more than two out of three employers (69%) say they have no effective protection against employees making wholly unjustifiable claims to employment tribunals. The report shows three in five respondents (61%) have experience of an employee claiming unfair dismissal and ‘tagging on’ a discrimination claim in the hope of getting more compensation. Over half of employers (55%) say they have endured a complaint against their organisation on malicious grounds. More than half think the law on unfair dismissal should be amended to make it easier for employers to dismiss. A similar proportion (54%) also support more effective case management to identify ‘vexatious’ claims, with exactly half supporting the move to require tribunals to award costs against losing claimants.

Mike Emmott, Employee Relations adviser at the CIPD, said: ‘This survey reflects the strength of feeling among employers about the failings of the current system for resolving workplace disputes. [It] also suggests that recent plans outlined by the government – to increase the minimum period employees serve before they can claim unfair dismissal from 12 months to two years – will have only limited impact on the number of claims. This is because many claims are linked to discrimination claims which can be made from day one of employment. The real problem is that the employment tribunal system itself is broken and its costs and benefits are wholly out of line. The government needs to take a radical look at the existing machinery for protecting employment rights’.

Other findings include:

The number of days management and HR spent on managing both disciplinary and grievance cases as gone up since 2007, the last time the CIPD conducted a similar survey: from 13 to 18 days (disciplinary) and from 9 to 14.4 days (grievance)

There are significant differences between sectors – the number of days of management time (excluding HR) spent on handling grievances in the public sector (9 days) is much higher than private services (5.5 days)

There have been significant increases in the use of most forms of managing conflict, internal and external. Almost half of respondents say their organisation has increased its use of disciplinary action (50%) and grievance procedures (48%)

More employers seem to be using mediation to resolve workplace issues (some 80% in the public sector and nearly 50% in private services. Those who don’t use mediation cite its costs and their belief that there is no clear business case

Three out of five (62%) say their organisation is making increased use of training line managers in handling difficult conversations

Major reasons for using compromise agreements (other than to settle an existing claim) are to remove an employee on grounds of poor performance or misconduct (39%), to avoid legal challenge in relation to redundancy (26%) and to make it easier to remove senior staff without embarrassment (24%)

The median cost of management time for dealing with a typical compromise agreement is reported as £1,000; the median cost of legal advice in drawing up an agreement is £750. Looking at the total costs involved, including compensation, the median was £11,000 and the maximum £110,000

Article published with the kind permission of Craig Gordon or www.HRBullets.co.uk

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