Employee Behaviour - What Standards of Behaviour can be Inferred into an Employment Contract?

Posted in : Seamus Says - Employment Law Discussion on 2 June 2023
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Contracts of Employment; Probation

Christine:  Great. So, Seamus, now looking at employee behaviour, we talked a while ago . . . This was our best attended ever webinar. We were talking about this lovely gentleman in Scotland who's employed by the Royal Mail. Somebody's Ring door camera captured all this on footage. He was stepping over an old lady in the snow who was asking for his help. He told her he was too knackered and he'd have to go on. He just didn't help the lady in question. And Royal Mail took an unsurprisingly dim view of this and he was dismissed.

So, I suppose the debate is how much of being a nice person can we imply into a contract of employment while allowing people to be individuals? What are your thoughts on that, Seamus?

Seamus:  Well, I think ultimately this is quite similar to the social media aspect in that the big issue for Royal Mail in this case was the reputational damage that was done by an employee.

This was a case in Scotland involving a postman, a community-based role likely known to the residents in the area that he's delivering post to. And such a large employer, such a well-known employer. I don't think there are any of us that will not have come across Royal Mail in some guise in our lives.

And really an embarrassing position, I think, for Royal Mail where they have an employee who doesn't do the right thing and doesn't assist an elderly person whenever they've fallen in the snow. I mean, you couldn't really write that one without it happening.

But it's that aspect of can you put a thread of common decency into your handbook or into what your expectations are? It comes back a little bit to what is the ethos of the company? What are the expectations here of the employer for the employees?

I think another issue in and around that, Christine, is also the part where the employer feels that there has been reputational damage done by the employee. And importantly, in this case, it happens whilst the employee is working, whilst the employee is wearing a uniform and they're easily identified as working for the employer.

I think the last time we talked about this, we talked about what type of behaviour. So, if you go to the staff handbook and you look for examples, we know that there are always examples in the handbook of what constitutes misconduct, major, minor, and serious gross misconduct, and there are examples. And there's always that line in that says, "This is not exhaustive", that there are other circumstances that arise. And you do need to look at it on a case-to-case basis.

But you could potentially struggle with that one to say, "Well, where does it say in my contract or where does it say in the staff handbook that I have to help an elderly person if they fall? How is that related to my employment? I'm doing my job. I fulfilled my obligations. I've delivered the post". So, it's adding that additional layer on.

But I think in these circumstances, there's a human factor to this. There's an element that a tribunal would frown upon these actions. And I think that the employer could certainly bring about a clear case that their reputation has been damaged as a result.

This ended up in one of the larger publications in Scotland, and there's no doubt that there was reputational damage there for Royal Mail. And from a public aspect, public could be saying, "Well, what are Royal Mail doing about this? Have they told their employees what's expected?"

So you're looking at really maybe going beyond what is within the handbook and maybe looking behind maybe what the ethos of the company is.

And you'll see a lot of these organisations now will have straplines for their business, for their organisation, and they'll have a code of conduct. So not just will they have a list of what constitutes misconduct, but they'll have a code of conduct.

And if you remember back in your school days and in your sort of work diary or your school diary, the code of conduct of the school was always sort of on the first page and everybody was aware of the types of things that would constitute difficulties or problems. So, it is there.

But really, what you're talking about there is when it comes to some form of dismissal, it's not really a performance-based issue. You could argue that there's performance there, but ultimately, you're probably looking at some other substantial reason in relation to a dismissal where there have been actions of an employee that have damaged the reputation of the employer and put the employer in a very difficult position from a public perception as well.

Christine:  To me, Seamus, it would come down to the mutual trust and confidence argument as well.

Seamus:  Yes.

Christine:  Is it right for Royal Mail to have the confidence in an employee that they will assist somebody who is in distress? And I would think that that is a case that could be argued. Of course, it's implied it's kind of the overarching thing, isn't it, in employment contracts? "We will do the right thing by you and you must do the right thing by us". Really, isn't that what that is?

Seamus:  Yeah, absolutely. The pillars and the foundation of the employment relationship are trust and confidence. And if there are difficulties that arise in the trust and confidence, you're looking at a position of saying, "Well, can the trust and confidence be rebuilt?" If it can be rebuilt, you're not at a point of dismissal. But if you're at a point where the trust and confidence is obliterated by actions, where it's not possible to rebuild the problems that have arisen, then you are at the point of dismissal. I think the law is fairly clear-cut in relation to that.

And then the question for the tribunal is, of course, "Is that within the bounds of a reasonable response if it is dismissal?"

But absolutely, it's the trust and confidence, and it drills down into the root of the relationship between the parties. It's just important that there is something in writing contained within the contract. And it doesn't need to necessarily say that, but it needs to flow from that. This is a two-way relationship and there are expectations from both parties in relation to it.

Christine:  This is an employee behaviour question. It's very tied into this, but you actually dealt with it in your very first ever webinar with us. It's about an employee on probation. So, probationary periods are very useful tools for employers, but in this particular scenario, the person was actually performing their job fine. You couldn't look and think, "They are not performing X, Y, and Z properly", but their attitude was just not great. What can you actually do about that?

So maybe that people are being impolite to other colleagues, or they've got a kind of a "don't care" type of vibe coming off them. How should an employer deal with that?

Seamus:  I mean, certainly, the probationary period is there to allow the employer to assess essentially how the employee is working out. And often you'll see that it'll say in the contract that the probationary period is three or six months.

Sometimes it can be identified. Most of the times, people will commence a job and when they know they're on their probationary period, they will be as good as gold. And once they get across the threshold of the probation period or if the probation period is extended, but once essentially they get in and they get settled, you start to see the true person coming out at that point.

So, it can be a difficult one to manage during and identify those issues through a probationary period, but certainly, where those concerns are arising, that is a conversation that needs to take place. It's a point of improvement and it needs to be discussed.

We always talk in our webinars about that aspect of communication, and I think that if you were just to let this build up and build up and then subsequently there was a fallout and a dismissal followed . . .

I've been in so many tribunal cases where the employment judge has said or you read it in the judgement of, "You never made the employee aware of what the problem was. How did you expect them to improve or return to a suitable standard or come to a suitable standard if they're not aware of it?"

So, those conversations can be difficult, and any HR practitioner will know that they can be uncomfortable, but there is a job to do in that respect. And I think that it does need to be communicated and there does need to be some form of . . . It doesn't necessarily have to be a formal performance improvement programme. You might get to that point.

But certainly where there are attitude issues, where the job is being done fine, but there are issues arising around attitude and maybe relationships with colleagues, if they're identified early on, they need to be dealt with and that needs to be explained.

It doesn't necessarily need to be as difficult a conversation as what you might anticipate it to be. And sometimes when you bring these to the attention of the employee, you will get improvement. Sometimes you won't and you will have to go down that performance improvement process.

Or alternatively, the attitude just comes out where they badly cross a customer, and whenever that happens, it brings you into the realm of potential disciplinary processes as well.

But it is one that, for me, needs to be dealt with early. And when there are signs of that, it needs to be tackled.

Christine:  Yeah. I've got a few questions coming in, Seamus. I'll put the probation one to you first, and then there's a social media question, which I'll backtrack to. So, if an employee is off sick during probation for a few weeks, is it okay to extend the probation period by the same number of weeks? That's a good question. It's not an easy one, that one.

Seamus:  I mean, it depends on the nature of the illness. I suppose you need to be careful about discrimination aspects if there are disabilities involved and things like that, and possibly looking at some sort of adjustment to the probationary period.

But essentially, if you have a three-month probationary period and somebody has been off for four weeks of that, maybe they've had a broken limb or an injury where they just haven't been able to attend work, I think it is reasonable in those circumstances to extend the probationary period out further because what you're wanting to do is use the full period to make that assessment.

But you do need to give careful consideration to if there have been issues arising around . . . if there are disabilities or if there is a mental health issue that arises. I wouldn't just say that you can automatically do it in every case. You do need to give a consideration for the specific matters that might arise.

But in general, your probationary period is there for that assessment to be done. And that's only something that can be done over time. So, often, it will be appropriate to move the period out for a further number of weeks if that person has been absent and you haven't been able to make that assessment during those absences.

Christine:  There's just a follow-up question, Seamus. What if it is a mental health issue? You do need to tread more carefully, don't you?

Seamus:  Yeah, you do. And I suppose the caveat to that is that you're moving the parameters of the probationary period out, but I suppose it's important to make it clear to the employee that that's not a punishment, that is not an outworking of the fact that they've been off ill. The justification for it is that the assessment period is there and we haven't been able to fully utilise that, and that's the reason for the extension.

It's not a circumstance of, "Here, listen, we're watching you because you appear to have a bad attendance record, and therefore, because of that, we're extending it out because we're just not quite sure about you". But often you'll see the genuineness coming through if there are issues.

But definitely, if there are mental health issues arising, I think that again comes back to communication. You need to have that open discussion with the employee and drill down into what those issues are, and maybe look to see what adjustments can be made to facilitate and assist the employee.

You'll only get to that point through discussion. And it shouldn't really be one you should shy away from. I mean, you're not going to go into a meeting like that and berate the employee or make them feel bad because they've taken time off. It's about getting an understanding and explaining to the employee why the meeting is important and what needs to be discussed and what steps the company can take after that.

Christine:  Yeah. I've just got a comment as well about unfair dismissal doesn't apply until you have your year's service. And I think that is a very good point. There is a lot of talk around probationary periods, but they're not actually a legal thing. They're just a nice, handy marker for both parties. Isn't that right?

Seamus:  Yeah. Look, my advice is always cautionary when it comes to clients. There are circumstances during a probationary period where I will say to an employer, "I think you're safe enough to simply move to dismiss the employee". But the majority of times, I tend to advise of a cautious approach.

Usually, the contract will say that it's not just a meeting at the end of the probationary period, but it can take place if there are red flags during that probationary period.

And I think it's important that you do write to the employee, you flag up what the issues are, you tell them that you're going to have a probation review meeting with them, and one of the outcomes of that might be their termination.

There is debate around whether if there is a termination, do you go ahead and offer a right of appeal? The risk for these cases is always that you get a follow-on where the employee says, "Well, look, actually, there was nothing wrong with my performance at work during the probationary period. It was because I raised complaints, because I raised health and safety concerns, or because I have a protected characteristic and I'm being discriminated against".

The employees know that they don't have the year to bring the unfair dismissal, so they bring a different claim. And then in that claim, they allege that the unfair dismissal was a part of the discrimination, and they can be awarded for the discrimination on that basis as well.

So, certainly, there has been an increase in those types of cases, and that's why I would sort of caution at times. But I will get full details off the client. I'll find out what the background is and what has gone on, and then we assess whether we're going to move forward.

But yeah, the basic position in Northern Ireland is 52 weeks you need to get your employment rights. Different than what it is in England, because it's two years in England. So, always just watch out if people are reading things online. Sometimes that's one that gets caught.

Christine:  Yes. Brilliant. Just mindful of the time, Seamus. So, to sum up this section, I suppose my takeaways are really mutual trust and confidence is implied into all contracts of employment, but what that means is going to differ depending on the role or the organisation that we're talking about.

And secondly, really use probationary periods wisely. They've no real "legal standing", but they do serve as a really useful marker and a sound for you to review new recruits.

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This article is correct at 02/06/2023

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Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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