How to deal with workplace dismissal

Gardening leave can stop staff from speaking out or starting new employment

An office fracas between employer and employee can be contained.

We all know that when a business has an explosive falling out with one of its key members of staff, sides can be taken quickly and the rumour mill can go into overdrive. But in these cases, there are ways that both parties can preserve their reputations and secure their financial interests.

EXPENSIVE DO

Employee suspension is by no means rare, and such situations can need further investigation – particularly where there is a risk of violence to or harassment of witnesses. Any suspension must be kept as short as reasonably possible and should be on full pay – unless the employer has a clear right to do otherwise. Suspension is said to be a neutral act, but if the employee is high-profile or in the public eye, it will inevitably add fuel to the fire.
After an investigation, if the employer has grounds to take disciplinary action, a failure to follow a fair process is likely to have legal and financial consequences. Any employee with more than two years’ service can claim unfair dismissal if a fair procedure is not followed, or the dismissal is disproportionate to the alleged misconduct. Compensation for unfair dismissal can exceed £76,000. And where discrimination or whistleblowing is found, there is actually no limit to the compensation that can be awarded.

DAMAGE LIMITATION

If behaviour is so serious that it amounts to gross misconduct, employees can be dismissed for a first offence. Theft, fighting or discriminatory behaviour are all examples of gross misconduct.
Employers want to limit the damage to their business, preserve their brand and ensure continuity. In the event of a disgruntled employee leaving, they’ll want to stop them going into competition. At the same time, the departing employee will want to protect their own brand – especially if they’re well-known and want to carry on working in the same field. Remember that employers often put restrictions in employees’ employment contracts to prevent them from joining a competitor.
But an employer who acts too hastily by dismissing a member of staff in breach of contract can inadvertently free the latter from these restrictions – more reason for the employer to approach disciplinary action with caution.

DEALING WITH FAME

The departure of a high-profile employee can cause a lot of uncertainty. As most employees will have a client base, a well-known person could even have fans, and the employer may be concerned that they will follow the employee to a competitor. Employers can protect their business by placing the departing employee on gardening leave. This is where the member of staff remains bound to their employer during their notice period – they cannot start new employment and can be stopped from commenting on the circumstances surrounding their dismissal. This allows the business time to install the employee’s successor and encourage fans of the dismissed employee to stay.

LAST PORT OF CALL

If the dispute can’t be resolved by agreement, then it could end up before the Employment Tribunal, in what will be a public hearing. Confidential settlement negotiations can take place at any point from before disciplinary proceedings are started up to when a judgement is issued. It can be advantageous to both parties to begin negotiations early on – because it limits the information which goes into the public domain. In truth, many employment disputes are settled long before a full public hearing, which means that the explosive nitty gritty of the situation may only ever be known to those directly connected with the dispute.
Paul McAleavey and Chris Weaver are employment lawyers at Payne Hicks Beach.

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