Most businesses understand it’s crucial to seek legal advice when they aren’t sure how the law applies to their dispute and feel out of their depth. But what about when you are convinced about the action needed, and you’re certain your behaviour is fair? In fact, these can be the cases most likely to trip you up. Faced with a clear-cut dispute, many employers go through the process with their mind already made up. Sometimes, the ‘simple’ cases draw you into complacency and lead to the biggest headaches at the tribunal. 
As Megarry J explained in John v Rees, when considering why in the clearest of cases it is still necessary to go through a proper procedure. 
The path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determination that, by discussion, suffered a change. 
Here's a few recent examples, and what you can learn from these mistakes. 
Going to work with covid 
The claimant was a cleaner at Lidl, employed by a cleaning contractor. He went into work while awaiting the results of a Covid PCR test, which later returned a positive result. Signs throughout the store told people not to enter if they had symptoms that could be Covid, and colleagues reported that the claimant was coughing and had cold-like symptoms. Lidl refused to let the claimant return to the site due to breaking their guidelines and government guidance. Feeling that their main contract might be at risk, the cleaning contractor held a management meeting, without the claimant, where it was decided his behaviour put others in danger and he was dismissed for gross misconduct. 
Despite the claimant breaking company and Government guidelines, the Tribunal found that this process was not fair or reasonable. There was some conflict in statements from witnesses, as well as uncertainty over whether the claimant took the test because he had symptoms (in line with guidelines at the time) or as a precaution after misunderstanding testing requirements. These issues should have been investigated further but were not. 
The tribunal also found that the employer’s health and safety guidance was outdated, having not been updated to reflect the pandemic and did not give instructions about what to do while awaiting a Covid test. 
Visiting the pub while on sick leave 
The claimant had COPD and was off work for three weeks with illness. On the first day of his absence, he was spotted in the pub. When speaking to his manager he said he had been in bed all day, but later admitted to visiting the pub twice while off work. His employers felt that if he was well enough to go to the pub (during Covid, with a vulnerability) he was well enough for work. Abusing sick leave is accepted to be misconduct, and so the employee was dismissed. 
However, the Tribunal found that the employer’s policies had no specific rule that claimant couldn’t socialise while off work ill. There was no evidence that the visit harmed his health or delayed his return to work, and so the employer couldn’t prove that the claimant was abusing sick leave. The company also failed to take written accounts, leading to some confusion over dates and times of conversations and whether the claimant was dishonest about being in bed all day or whether the statement referred to a different day. 
The discriminatory diversity drive 
Equality and diversity have proven to be important to a business’s performance and reputation. So when an advertising agency discovered a ‘shocking’ gender pay gap of 44.7%, it decided to take urgent action to shake off its reputation as a “Knightsbridge boys’ club.” When some male employees raised concerns about the language used and their job security, they were seen as obstructing the move towards diversity and were later selected for redundancy
The tribunal held that the redundancy process was not fair as the agency did not consider potential candidates on performance. Instead, they selected candidates because they had raised concerns about their rights under the Equality Act, which amounted to victimisation. The claimants would not have faced the same backlash had they been women. 
The public tend to think of discrimination laws protecting groups that are underrepresented. But the laws protect everybody from poor treatment based on a protected characteristic. 
Sex and age discrimination against a middle-aged white man 
When a 55-year-old white man made a complaint of harassment and bullying by his Ghanian colleague, the company failed to properly address the behaviour. The claimant later resigned because his colleague’s aggression (including calling him “too old to do his job” and an “old white guy”) had left him intimidated and unable to work for the company. 
But the treatment was harassment based on his race and age and the company had failed to protect him from discrimination. The claimant was successful in claiming constructive dismissal
Lessons for employers 
In these cases, the employers were too sure of the outcome and failed to follow correct procedures and keep an open mind. That’s why a case that seems ‘clear-cut’ can be so dangerous for your business. A legal advisor could have pointed out the potential claims, but employers often don’t see a need to seek legal advice when they are sure they’re behaving reasonably. Seeking legal advice on all disputes will ensure that any actions you take are legally sound.  
You should have legally sound, up to date policies in place for handling disputes, and make sure to follow them in every single case. Regularly give refresher training to managers and anybody else dealing with disputes, so that you know they are following your policies. 
When dealing with any grievance, you should keep an open mind. You must treat the process as an investigation, rather than going through the motions to try and ‘cover yourself’. In particular: 
Consider all the evidence. Even if you don’t think it will make a difference, it is best to consider it and be able to explain your conclusions. 
Avoid making assumptions about your employee’s intentions. Don’t assume recklessness or dishonesty where it could have been a misunderstanding. 
Don’t pre-judge based on factors such as the employees age, race or sex. If the characteristic is protected, you risk discrimination claims from either party. 
Assess your policies to make sure they were up to date, clear and not the cause of any misunderstandings. 
Keep records of your investigation and how you reached the outcome, to help evidence that your process was fair. 
If you face a significant number of disputes and legal claims, this could suggest that your policies are unclear or ineffective, or your practices may be causing issues. You should consider consulting an employment law specialist to help identify and resolve the problem. 
Get in touch for help with a dispute, or help with avoiding disputes. 
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