The Changing Face of Representation
It’s stating the obvious to say that over the last 30 years the workplace has changed dramatically through a combination of technology and much different employer and employee attitudes.
One of the areas affected most has been what used to be personnel, now human resource, management. From a world in which personnel managers tended to be a form of cartilage between employers and employees, moderating some employers’ worst instincts, we have now moved to one in which so called ‘hard HR’ dominates.
Many people working in HR have a genuine wish to promote decent workplaces and fair working practices but the preparedness of top managers to embrace hard HR has brushed these ethically oriented aims into the long grass.
We encounter this approach to employees every working day and its effects are often distinctly unethical not to mention dishonest. At one end of the spectrum we see communications couched in gobbledygook so employers can appear reasonable when their actual objectives are anything but. At the other end, my colleagues and I experience rank dishonesty, often amongst people who themselves are charged with investigating or passing judgement on alleged misconduct!
Even the academic world, where one might expect more nuanced and ethical thinking and greater tolerance of alternative viewpoints, has been gripped by the nastiness of some extremist groups, encouraged by the most senior university managers and aided and abetted by HR departments and education trade unions with equally narrow perspectives. University cases have been amongst the most unpleasant we’ve dealt with.
Finally, we have represented a member who works for ACAS (who give employment law advice to employers and employees) and who was accused of racism and harassment. I was stunned to find that anyone could easily accept allegations of racism against a man whose wife and children were black! It quickly became clear that the case against him was entirely misconceived by a self-appointed pressure group in ACAS and he has now won his case at the Employment Tribunal (more of that in a later newsletter).
So, Who Guards The Guards?
It’s an interesting question.
Employees can and of course do commit acts of misconduct, some minor some serious. Some are genuine errors, others are caused by the pressure of their workplaces. In some cases dismissals are understandable. But everyone is entitled to a fair hearing and reasonableness, both in investigations and disciplinary outcomes, with a presumption of innocence until any guilt is proved.
What UK law does not tolerate easily is bias in investigations, dishonesty by investigators and the use of trumped up disciplinary charges to get rid of people who are surplus or simply unpopular with their superiors. Unreasonable disciplinary outcomes, where minor misdemeanours or performance failings are blown up out of all proportion, tend to get pulled up short at the Employment Tribunal, where employers’ cases fall apart under the scrutiny of judges who can’t be pressurised.
My older colleagues tell me that there was a time, in the recent past, when in the case we dealt with most people could expect to be investigated and judged fairly. I’m sorry to say that my experience with the Union has been quite the opposite and it’s hard to see a situation in which there will be a return to more ethical treatment of employees any time soon.
The Employment Appeals Tribunal is a proper court which hears appeals in employment cases. In a relatively recent case, His Honour Judge Serota KC, drawing on a specific precedent case, ruled that:
“In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.”
Translating that into ordinary language – a hearing manager must be left to make a decision free from the control or influence of HR or line management. Management should not appoint pliable hearing managers or rig investigation reports or hearings to get the result they want!
Sadly, that’s not what happens in many organisations and dishonesty in this area is widespread.
Poor Quality of Investigators and Hearing Managers
The low ability of some of the people given the job of investigating alleged misconduct or acting as hearing managers and/or their junior level in organisations means that investigations are often of poor quality or slanted and hearing outcomes are manipulated by HR or line management, both of whom are essentially faceless and operate in the shadows. Thus, investigating managers and hearing managers can be propelled into acting improperly by people who ensure that they themselves operate risk-free!
And all too often investigators and hearing managers simply do not understand the issues they are supposed to be looking at or they clearly start off from a presumption of guilt, so most of what follows is designed to prove that case.
This is not a recipe for fairness.
It’s All About The Law
Affinity’s track record in fighting unfair disciplinary and grievance outcomes, permitted because we are a union that is entirely independent of the employers with whom we deal, is well established.
But the scale of change in organisations and the inevitable clash between what top managers want to achieve and the legitimate interests of employees means that increasingly cases are not going to be resolved through rational discussion and will need to be taken to the Employment Tribunal, where at least fairness is assured.
To meet this challenge, we have expanded the Union’s Advice Team and increasingly most of our work has moved from giving simple advice to handling difficult legal issues and very complex cases.
24 Hour Advice
After we launched our 7 day, 24 hour advice service 25 years ago we regularly received large number of calls across the full 7 day bandwidth but most actual cases were resolved sensibly with employers.
That started to change in 2018, to the point that now there is very little demand for out of hours advice but there is massive demand for advice on complex employment cases and for intervention in serious employment disputes.
We are therefore shifting resources to case management and the 7 day service will end on 30th November 2023. From 1.12.2023 the Advice Team will be available from 8:00 a.m. to 6:00 p.m. Monday to Friday but members with genuinely urgent issues will still be able to email us for help at email@example.com.
How You Can Help Us and Yourself
It’s understandable that people will hope that problems will go away but as we’ve said many times, they seldom do. Pursuing the line of least resistance in the hope that you will be treated reasonably when there is any sort of potential problem or ignoring criticism was never very sensible: now it would be downright foolish.
And contacting us the day before you are going to be dismissed is unlikely to help much. We want to hear from you on 01234 716005 as soon as there is the slightest sign of any potential problem.