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Looking into workplace investigations, Part 7 – the inclusivity imperative (UK)

The increased spotlight upon D&I matters which seems to be replacing covid as our clients’ dish of the day shines upon investigations too.  How you investigate employees’ disclosures or complaints (especially but by no means necessarily, of discrimination or harassment) can make a considerable difference as to how those employees and others sharing their protected … Continue Reading

Looking into workplace investigations, Part 6 – preparing the statutory defence (UK)

Once you have done all the scoping out and refining of allegations you can before starting your investigation, there will come the point where you have to raise the allegations made with the people they are made against. If the allegations are false, those people will be very angry.  If they are true, they will … Continue Reading

Looking into workplace investigations, Part 5 – seeking truth, justice or resolution? (UK)

Decades of presenting employment law training have taught me that if you ask seasoned HR audiences what they think employees usually want from a grievance, they will generally lie.  “Justice“, someone will mutter uncomfortably, or “for the truth to come out”, “a better relationship with their manager” or “to correct a wrong“, all straining every … Continue Reading

Looking into workplace investigations, part 4 – respecting the rights of bullies and harrassers (UK)

When drawing up your preliminary note of what you need to know as the product of your investigation, remember that the people being investigated have rights too.  Some we will come to later in this series, including confidentiality and a fair process, but the first and most fundamental part of a fair “trial” is knowing … Continue Reading

Looking into workplace investigations, Part 1 – what are you talking about? (UK)

Today we start a new series of posts tackling the vexed area of workplace investigations.  We will look at the background law, of which there is very little, and at best practice guidance, of which there is more than can possibly all be useful.  We will offer some examples of investigations done badly and consider … Continue Reading

Disciplinary Procedures webinar – your questions answered (UK)

Our webinar on disciplinary proceedings last week began unpromisingly – there is no new law and little new practice to learn, I had to say, not necessarily what you want to hear from your legal training session.  Nonetheless, we had several hundred sign-ups, perhaps tribute to the enduring mystique and indeed terror implicit in conducting … Continue Reading

EAT hits employer with warning shot on disciplinary procedures (UK)

London Borough of Hammersmith and Fulham – v – Keable is an EAT case with everything in it – Nazis, Holocaust deniers, Momentum activists and Members of Parliament, though not necessarily all at the same time.  Oddly, despite this outstandingly diverse cast, the most important part of the decision for employers is actually the EAT’s … Continue Reading

Bogged down in pointless appeals? – The Law speaks (UK)

Periodically a case comes along to remind us that underneath all good dismissal practice, Acas guidance and the rest is The Law, and that The Law is sometimes less rigid in its requirements of a fair dismissal than all that guidance might suggest. Moore -v- Phoenix Product Development Limited is today’s such case, an everyday … Continue Reading

Proposed right to disconnect lacks joined-up thinking (UK)

BBC News Online reported last week a call by trade union Prospect for the Government to legislate to “ban out of hours emails from bosses” or, beneath the headline, to “ban bosses from routinely emailing or calling outside set working hours“.  This looks like the proposed introduction into English law of the “right to disconnect” … Continue Reading

“Fair dismissal for not wearing face-mask” headlines hide full story (UK)

It’s not natural for our freedoms and permissions to be limited in the way they have been since last March, so whatever one’s own views, it is hardly surprising that some have found those restrictions hard to swallow and have railed against COVID-19 related rules, state imposed or otherwise. The requirement to wear masks in … Continue Reading

Legal Developments Webinar 23rd February – your follow-up questions answered, Part 3 (UK)

As attention turns increasingly to the practicalities of the physical return to the workplace in what may be little over 3 months, questions of employers’ rights and obligations in relation to testing and vaccination are becoming more common.  These are vexed areas which can easily put common interest into conflict with civil liberties.  Just how … Continue Reading

Representative’s reprimand for clear misconduct unlawful, says EAT (UK)

The Employment Appeal Tribunal has recently handed down a judgment which serves as a useful reminder for employers of the risks of taking disciplinary action against union representatives for behaviour which may look like misconduct but which actually constitutes union activity. By way of background, section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) … Continue Reading

“A positive attitude may not solve all your problems but it will annoy enough people to make it worth the effort” – dealing with “attitude” at work, Part 1 (UK)

So said German lithographer Herm Albright in a rare moment’s cynicism, but of course if you really want to get on your colleagues’ nerves, a hostile or negative attitude is far more to be commended. So here is a question arising from a matter on which we were recently instructed. Client’s employee has a persistently … Continue Reading

Summer Vacation Is Definitely Over At The NLRB (US)

Between August 29 and September 10, the National Labor Relations Board (“NLRB” or “Board”) issued four decisions that resolve important issues that have been the subject of long-running disputes.  It also issued an invitation to submit briefs in a case that provides an opportunity for the current Board majority members to revise the standard for … Continue Reading

Mental health and difficult meetings – how far can the employer insist?

Much has been written over the last month or so about Mental Health, and rightly so.  It has now overtaken back pain as the principal cause of workplace absence in the UK.  Anything which encourages an environment in which mental health issues may be more openly discussed and genuine sufferers’ sense of isolation or embarrassment … Continue Reading

Looking into disciplinary investigations – EAT’s lessons on when enough is enough

It is a basic plank of a fair disciplinary dismissal that it be preceded by a reasonable investigation.  But what is that, exactly?  How much detail must you include in your enquiry, how many witnesses must you grill, how far back do you have to go, how far must you challenge or test the evidence … Continue Reading

Recently-Released NLRB Advice Memo Favors Reversal of Precedent on Weingarten Rights For Non-Union Workers

On September 7, 2017, the National Labor Relations Board (NLRB or Board) released several advice memoranda issued previously by the Board’s Office of the General Counsel to local field offices.  Advice memos are used by the Board’s General Counsel to guide local offices on Board policy, and may serve to instruct the offices on a … Continue Reading

EAT says even expired warnings can be taken into account when dismissing an employee. Sometimes.

In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996. Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most … Continue Reading

Employer representatives at French pre-dismissal meetings should be chosen carefully to avoid a finding of procedural irregularity

This is already established case law but sufficiently unusual as an issue that worth the reminder to employers with operations in France. The French Labour Code expressly provides for an employee to be accompanied by a colleague or in some cases by an appointed external advisor (mentioned on a list held by the Labour Inspector … Continue Reading
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