Employment Matters April 2008

It ain't what you do, it's how you do

Su Makin, an HR specialist working within Cobbetts Employment Team, looks at the difference between theory and practice in dealing with issues in the workplace.

I've been tryin' for a very long time
To get my business, my business straight…
It ain't what you do, it's how you do
It ain't what you've been through
It's how you've been through

Cult rock band The Hurriganes (“Finland’s answer to Dr Feelgood”) may not have had Schedule 2 to the Employment Act 2002 in mind when they recorded this particular roots rock and roll classic but they captured a major truth about management in the 21st century.  Those of you who were around in the 1980s may be able to picture Bananarama and Fun Boy 3 voicing a similar idea, ideally without remembering what you were wearing at the time.

As you will know from previous Employment Matters and innumerable learned articles Schedule 2 requires you, as a first step in dealing with any disciplinary issue, to “set out in writing the employee’s alleged conduct or other characteristics, or other circumstances, which lead you to contemplate dismissing or taking disciplinary action against the employee”. You have to “send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter”.

There has been debate amongst employment lawyers about what such a statement needs to contain and how little an employer can get away with, but the safe advice will always be to write a detailed letter setting out all the possible allegations and all the evidence which could prove to be relevant.  There has been less discussion about what the practical consequences of this are for you as a manager or HR specialist given the job of running the disciplinary process.

There are some very simple but very significant questions:

• Can you say anything to the employee before they see the letter?
• Should you post the letter to them or get it to them at work?
• Can it be put in their pigeon hole or left on their chair or should a PA or someone from the postroom hand it to them?

Those questions crop up in any case, even where the evidence seems to be stacked up and everyone thinks the employee has been caught bang to rights.  There is still a need to act properly and to treat people with respect.  But what if everyone knows that you don’t have the employee bang to rights?  What if the aim is to agree with them that their future lies elsewhere and to negotiate a parting of the ways with a compromise agreement?  It’s not going to help the negotiation along to produce a long list of allegations which may be a bit thin and which the employee will instinctively want to deny, but on the other hand if you end up dismissing without having complied with Step 1 of the procedure set out in the Act, the employee will have a cast iron unfair dismissal claim.

This is just one of a range of situations where my perspective is slightly different from the perspective of an employment lawyer and it makes life in the Cobbetts employment team interesting for us all.  Part of my job is to say the things to the lawyers I work with that you are sometimes too polite to say, such as “Don’t you think that contract’s a bit wordy?” or “If I was dealing with this situation I’d want to a script which went beyond the legal requirements” or “How disastrous will it be if I do this instead?”  There are times when I’m wrong – I’m not am employment lawyer and it’s very reassuring to be able to check things so easily.  But there are also times when my suggestions make a difference, when how you do is more important than what you do.