An employment tribunal is likely to see the Christmas party as falling within the ambit of employment, bringing the risk of the employer being liable for discrimination and other claims. This can also land you with grievances and damaged relationships.
‘No team is harmonious all the time, but sometimes working relationships can deteriorate to such an extent that employers may need to take drastic steps to resolve the situation. A breakdown in working relationships can be damaging to productivity, individual performance, and team morale,’ says Claire Simon, Partner in the employment team with QualitySolicitors Parkinson Wright. ‘Depending on the underlying issues, the employer may also be at risk of being liable for an employee’s actions, for example bullying resulting in a constructive unfair dismissal or a discrimination claim against the employer.’
Claire looks at how to manage the workplace while a grievance is being dealt with, what employers can do when differences seem irreconcilable and minimising fallout from the Christmas party.
Grievances and breakdown in relationships
If an employee brings a grievance against another employee or their manager, relationships are likely to become strained.
Should we move one employee?
It may be clear from something the complainant said, or their actions, that being around the person named in their grievance is likely to make them distressed. It may be necessary to temporarily separate the employees while an investigation is carried out, particularly if the grievance involves allegations of bullying or harassment. This could involve a change of team or location or change in reporting lines if the complaint is about the line manager. If there is another team or location to move to, who should move?
Should we move the complainant?
Automatically moving the complainant could be victimisation and could compound feelings of being isolated or side-lined. It may also signal to other employees that the employer is not supportive of employees raising grievances. This in turn may prevent a light being shone on pockets of unacceptable culture within the organisation; with associated risks of tribunal claims and a detrimental impact on employee retention.
Should we move the alleged perpetrator?
However, moving the employee named in the grievance could make that person feel the employer has prejudged that they are guilty. The worst-case scenario is that the move has a detrimental impact, for example if it is effectively a demotion, and the employee resigns claiming constructive unfair dismissal or alleges that they were moved for a discriminatory reason.
To navigate this quagmire, employers should be guided by operational reasons when deciding who to move. This decision needs to be explained to the employees. If it is not possible to separate the two employees and the allegations are sufficiently serious, the option of last resort is to suspend the alleged perpetrator while the investigation is promptly carried out.
What can we do if relations do not improve?
Even if the outcome of a fair grievance process is that the grievance was unfounded, the working relationship may not improve. In some cases, the grievance can trigger a breakdown in relations. Colleagues may feel unable to work with or manage the complainant for fear of another grievance being raised.
Options will depend upon the size of organisation, but employers should consider all feasible solutions. This could involve one employee agreeing to an internal transfer or different reporting lines, although similar considerations apply as with the temporary separation. We can advise you on managing the specific risks. Suggesting mediation is often an important step, although one or both employees may be reluctant and cannot be forced into this.
Is dismissal an option?
If things do not improve, it may be that working relationships have irretrievably broken down. If this is having a detrimental impact, it may be time to consider dismissal, but only as a last resort. The law gives employers five potentially fair reasons for dismissal. One of the less frequently used reasons is called Some Other Substantial Reason (SOSR). Although it sounds like a flexible basis for dismissal, tribunals will scrutinise any SOSR dismissal to check whether the real reason is in fact the employee’s capability, performance or conduct. Where there is an irretrievable breakdown in relationships, it may be fair to dismiss the employee on the grounds of SOSR. This is likely to be outside your usual policies and we can advise you on how to follow a fair procedure. We strongly recommend speaking to us before going down this route to help you manage the risks.
Avoiding fallout from the work Christmas party
If you have concerns that behaviour may fall below acceptable standards, it is worth being clear to staff in advance that certain behaviours will not be tolerated. This could include reminding employees that the company policies still applies. Managers and others in authority need to be onboard and model appropriate behaviour. If not, any subsequent disciplinary action could be challenged as inconsistent and unfair. One practical step is to task a manager with keeping a clear head and arranging a taxi for an employee whose behaviour appears to be be getting out of hand.
How we can help
We have a wealth of experience in managing tricky situations involving difficult employee relationships. We can find practical solutions that minimise the risks to your business and the use of management time. For further information, please contact Claire Simon or a member of the employment team on 01905 721600 or email email@example.com
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.