When is criticising the boss a fair reason for dismissal? Ian spoke to People Management magazine about a recent tribunal.
The claimant was overheard criticising his manager using strong language. The employer took disciplinary action, which then led to a dispute over sick pay while the outcome was being appealed. The claimant resigned and claimed constructive dismissal. The tribunal found in his favour.
Will such dismissals always be unfair?
No. Every case is specific to its own facts and context. There may be times where an employee is found to have been fairly dismissed – perhaps because of the way they expressed their opinion, or because their view was founded in discriminatory attitudes, for example. But this will depend upon factors such as the complaints involved, whether they are well grounded, how they were communicated, and whether company policy was followed.
How best HR can intervene when an employee is overheard making negative comments about their manager?
Depending on the situation, there may be a chance of resolving the matter informally. If not, the grievance policies will be very helpful here. HR should follow the process fairly, making sure to avoid bias or preconceived conclusions. Properly applying company policies can significantly reduce the risk of unfair or constructive dismissal.
As well as focusing on the dispute between staff, it is sensible to investigate whether there is any basis to the criticisms. Even if you disagree with the way the concerns were raised, the employee may be raising legitimate concerns. If the manager involved isn’t performing their role adequately, this is an opportunity to improve performance. Failure to investigate could further divisions within the team and lead to resentment.
This case also raised issues of discrimination and whistleblowing. While the claims weren’t upheld, these are important issues to consider when handling disputes. HR should consider whether the complaints could be protected disclosures, and if so make sure to follow correct whistleblowing procedure. They must also be cautious of the appearance of stereotypes, for example portraying certain ethnicities as aggressive, or penalising staff for behaviour that doesn’t fit gender stereotypes.
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