Employment Law Consultant Peter Etherington (www.etherington.co.uk) answers your queries about human resources and employment issues.

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Question:

I'm a director of a design company. I'm concerned that our sales person is experiencing sexual harassment from a client. She wants to handle the situation herself to protect the account but I'm nervous about our legal obligations in this instance. What steps should I take?

Peter Etherington replies:

Firstly, if you have any written policy to do with sexual harassment (which could be in your equal opportunities policy) make sure you follow what it says. Otherwise I would suggest the following:

I assume your employee has told you about this potential harassment herself. If not, then I suggest you (or her line manager if appropriate) have a word with her and find out what is going on. 

I would approach this as a concerned employer wanting to protect your employee, so that she does not feel that she is being disciplined or called to account.  If she continues to maintain that she wants to deal with it herself and if she considers the harassment to be fairly low-key (e.g.: mild innuendo or flirting), then I suggest you allow that but tell her you would like to review the situation with her on a regular basis.  The purpose of the reviews would be to ensure that it has not escalated, that she is indeed dealing with it OK, and to be able to step in if she is finding it difficult to cope.

If the harassment is more severe, then you really need to take steps even if the employee would rather deal with it on her own. The reason for this is that you have a duty of care to your employee and, if you knowingly allowed serious sexual harassment to continue, you could be held liable.  It may be that your employee feels under pressure to say she can cope because she doesn't want to appear weak; it is important, therefore, that you can reassure her that this would not reflect poorly upon her - only upon the client. 

The steps to take will depend on the particular circumstances.  Clearly you will need to talk to the client if you decide to intervene.  It may be that you feel it appropriate to cease dealing with this particular client.  Alternatively, particularly if the client appears to be genuinely contrite, you may be able to assign a different member of staff to the account (but be careful that this does not have a detrimental impact on your employee - for instance, on commission). Another outcome could be that the client apologises to your employee and they continue to work together (but I would advise you to still keep this situation under review). 

A final point to remember is that harassment to a large extent is in the eye of the beholder.  In other words, something that you or I may consider just harmless banter could be considered sexual harassment if the employee experiencing it feels threatened or undermined, etc.  I hope that is of some help, but I would suggest you seek futher advice, particularly if it is serious sexual harassment.

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Question:

A friend has set up a new start business running a hairdressing salon.  It has come to her attention (CCTV evidence from hidden camera) that one member of staff was stealing cash and another one was turning customers away whilst cutting another member of staff’s hair.

She wants to call them in for a hearing and believes she needs to give them 48 hours notice. Please could you confirm this and also offer any advice on avoiding any obvious pitfalls. One of the miscreants took a previous employer to court and won so she is anxious to do things by the book.

Peter Etherington replies:

As discussed in the previous answer, a lot depends on the length of service of the employees.  The following answer is provided on the basis that they have one year's service or longer.
 
Your friend certainly needs to give notice of a disciplinary hearing - I would advise a minimum of 24 hours but 48 is even better.  This should only be done after a reasonable investigation has been carried out (which it seems may have already taken place). 

There should be separate hearings in respect of each employee. The invitation should be in writing and should set out what allegations are being made, giving enough detail to allow the employee to respond. The letter should also make it clear that dismissal is a possible outcome of the hearing.  If they have a written down disciplinary procedure, it is good practice to enclose a copy of it (and to make sure it is followed correctly). 

It is important that the employee is given copies of any evidence that is to be relied on in advance of the hearing (including CCTV evidence) to allow enough time for them to review it (best to give it at the same time as the invitation). 

The letter should also set out that the employee has the right to be accompanied by a trade union rep or fellow employee (and they can ask for the hearing to be postponed by up to 5 working days if their choice of companion cannot attend the scheduled hearing).
 
There are lots of other things to consider when preparing for a hearing, and I would suggest your friend would do well to take further advice on this (of course I would be happy to oblige!)  For instance, it is important to follow the laws of natural justice when carrying out a hearing (be impartial, ensure a fair hearing, adjourn to consider further evidence if it comes to light during the hearing, offer an appeal, etc.) 

At the end of the day, if the employer decides to dismiss they should be able to demonstrate that they genuinely believed in the guilt of the employee(s), based, if necessary, on the balance of probability; that they have reasonable grounds for holding that belief; and that this has been arrived at after a reasonable investigation.  The final strand, of course, is that they have followed a reasonable procedure as set out above.

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Question:

Am I obliged to give a work reference for a former previous employee even if I don't have anything good to say?

Peter Etherington replies:

In some cases there is a legal requirement to provide a reference where it is custom and practice within a particular sector to do so.  A good example of that would be in the financial services sector. 

In other cases it can be unlawful to withhold a reference if the reason for doing so is because the employee has brought a claim against you (i.e. could be classed as victimisation if you withheld a reference for an employee bringing a discrimination claim against you).

In short, it is normally best to provide a reference but what you put in the reference can depend on the circumstances. 

If you decide to provide a reference, you are duty bound (both to the prospective employer and to your ex-employee) to be truthful and factual.  If, for instance, your ex-employee was recently disciplined and there was a “live” warning still on file, you would be duty-bound to reveal that to a prospective employer if you were commenting on their conduct/performance. 

On the other hand, if you were unhappy with their performance but had never taken any formal action, it would be quite wrong to comment in detail about underperformance.

As you can see, writing a reference can become a bit of a minefield!  It is because of this that many employers decide to only provide a basic reference – setting out dates of employment, job title, etc – and do not comment on performance or conduct at all.  This may be the safest course for you.  The downside to this is that the recipient may telephone trying to elicit a bit more information, in which case you need to take care as the same duty of care applies to references given verbally!

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Question:

I'm unhappy with the consistently poor performance of one of my employees. As a small business manager, will I be in trouble if I terminate this person's contract? Is there a specific procedure I have to go through first?

Peter Etherington replies:

This is difficult question to answer without knowing a bit more about your employee.  If you are able to submit your question again it would be helpful if you could tell me how long the employee has worked for you, whether they are within a probationary period and whether there are any other relevant circumstances (e.g.: is it a pregnant woman?!)

The length of service issue is really the key, because an employee can only bring a claim for unfair dismissal in most circumstances when they have acquired one year’s continuous service with you.  

If your employee has one year’s service or more then you will not be able to dismiss them fairly without going through a proper procedure.  This will include setting out why you are not happy with their performance, giving them the chance to improve (perhaps with additional training), giving them a series of warnings over a period if they do not manage to improve (normally a verbal warning, followed by a written warning and then a final written warning) and giving them the right to appeal at each stage. 

There are statutory procedures that you must follow at each step; failure to follow them will make any dismissal automatically unfair.  On top of that, there is the Acas Code of Practice 1 – Disciplinary and Grievance Procedures, which sets out how an employer should conduct disciplinary matters.  I would strongly recommend you take advice before starting on this course and obviously I would be happy to provide that advice.

If the employee has less than a year’s service it is a little more straightforward, particularly if they are under a probationary period.  However, I would still advise you to follow the statutory procedure by inviting the employee to a disciplinary hearing, notifying them of your concerns regarding their performance and giving them the right to be a accompanied by a fellow worker or trade union rep; giving them the chance to put their case at the hearing; writing to confirm your decision and giving them the right to appeal (this is the procedure in a nutshell and I would advise you to take further advice). 

Employees can bring any sort of discrimination claim without having to have acquired a certain length of service; that is why it is important to follow a basic disciplinary process so that it is clear that the dismissal is related to their underperformance and not to any discriminatory issue.  This is particularly important now that discrimination legislation covers such a wide range of issues (including age, religion or belief, sexual orientation, part-time working, etc.).

The fact that you are a small employer means that an Employment Tribunal would take into account your limited resources if dealing with a claim – generally speaking there would be lower expectations in relation to how much training you were able to provide to help your employee improve, how much time you were able to give them in order to improve, etc. 

However, there are no exclusions for small employers and it would be dangerous to rely too heavily on having a sympathetic Tribunal panel.

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Please note: the answers given above are general advice based on the questions.  They should not be taken as detailed advice or as a recommendation to pursue any particular course of action - Peter Etherington would need to review the specific circumstances to provide such advice/recommendation.

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