Cas's Blog - Is the diagnosis fairly substantial?

There are many problems that employers have to manage but possibly one of the most troublesome is that super tricksy beast, the breakdown in working relationships.

Let me lay out a typical scenario.  The employee in question, complains about – well let’s see…just about everything!  The HR department are alert to the fact that a qualifying disclosure may be being made, or discrimination, harassment or bullying taking place, and arrange to discuss the complaints with said individual to gain more detail so they can be investigated.

At this stage, in normal circumstances, an investigator would be appointed, interviews conducted, and a grievance hearing held.  But that’s in normal circumstances. What happens next in this scenario is that the employee says that they don’t really want to make a complaint…’No, no, it’s not bullying or harassment etc.’, they were just pointing out that…’so and so wasn’t doing their job properly, or the system/policy/procedure isn’t quite right, or a colleague looked at them in a funny way, or the food in the canteen wasn’t quite to their taste…’or all of the aforementioned.

So, HR explain that there isn’t really anything of substance to investigate and if the employee doesn’t want to lodge a grievance, then let’s all just get back to our day jobs.

Which is exactly what should happen.  The problem is, it doesn’t, because the next day/week/month the same individual will make more complaints.  Same as before, there is nothing of substance to investigate, but there is a pattern being established, which mainly involves niggly criticisms of their peers and managers.

After several months of this it’s now feeling like Groundhog Day.  HR, colleagues, and managers are fed up to the back teeth both with being targeted with unwarranted criticism, and wasting time trying to smooth over troubled waters.  The decision is made that the situation is untenable and that there has been a breakdown in relationships, both with colleagues and the employer.

The process for dealing with a breakdown in relationships is fairly straightforward.  It should more or less mirror a disciplinary procedure except that the employee’s behaviour is not alleged to be misconduct.  Rather, their behaviour is causing a breakdown in relationships, which in accordance with section 98(1(b) of the Employment Rights Act 1996 is categorised as ‘some other substantial reason’.

The employee is warned at a formal meeting that failure to moderate their behaviour  might result in their dismissal, and when they fail to do so, they are dismissed with notice. They are, of course, given accompaniment rights and the right to appeal.

The dismissed employee should not be able to succeed with a whistleblowing unfair dismissal claim, because the employer has been clear that no qualifying disclosure has been made, and they shouldn’t succeed with a discrimination claim as the employer is sure that no such complaint has been alleged.

There is a trap here for the unwary employer, however, if a claim is made. If the employer has mis-diagnosed the behaviour, an employment judge might find that the behaviour actually amounted to misconduct and should have been managed under the disciplinary procedure.  Where this is the case, if the employer’s disciplinary procedure has more stages (and many do) than the employer has followed for the breakdown in relationships, then the dismissal will be held unfair. Even if the procedure mirrors the stages of a disciplinary procedure, a tribunal might still judge the dismissal to be substantively unfair.

Pleading in the alternative will help with the fairness of the substantive issue, but not with the procedural fairness.

So, take care extra care to diagnose that ‘difficult behaviour’, correctly, otherwise that ‘difficult’ employee might continue to be a thorn in your side long, long, after you thought you had parted company, fairly, and for good.