Employment law SOS: Stealing from a vending machine and catch-up pay settlements

Theft and damage to company property are acts of misconduct which can potentially amount to 'gross misconduct', which might warrant summary dismissal, i.e. dismissal without notice. However, although 'conduct' is one of the potentially fair statutory reasons for dismissal, if a dismissal is subsequently challenged in an employment tribunal, you would still need to be able to show that you acted 'reasonably' in all the circumstances in dismissing an employee for the misconduct alleged. In order to successfully defend a claim of unfair dismissal, an employer needs to establish that it genuinely believed an employee to be guilty of the misconduct alleged, that it had reasonable grounds for that belief and followed a 'fair procedure' before dismissing an employee. An essential element in establishing the above is demonstrating that there has been a proper investigation into the alleged misconduct. There is no absolute rule on what amounts to a 'proper' investigation it will depend on the circumstances of the case. What evidence do you have that an employee has been tampering with the vending machine? Do you have CCTV evidence showing an employee engaging in this conduct? Have you received information from other employee(s), implicating a colleague? If you decide to rely on witness evidence as part of a disciplinary process, as a minimum, an employment tribunal would expect you to have interviewed relevant witnesses, taken witness statements and afforded an accused employee the opportunity to consider the evidence against him/her, and respond to it at a formal disciplinary hearing. Q I am a manager in a small manufacturing company. I am concerned that, as the sector emerges from recession, there could be greater pressure for 'catch-up' pay settlements. What are my legal obligations when it comes to wage negotiations? The outcome of wage negotiations usually impacts more on employee relations than giving rise to specific legal claims. However, employers are always subject to the legal obligation to pay workers in accordance with the national minimum wage, and not to operate payment structures in a manner that breaches discrimination and/or equal pay legislation. Wage levels are governed by the terms of an employee's contract of employment. Few employment contracts make provision for automatic annual pay increases. However, some provide for annual pay reviews, placing an obligation on the employer to undertake a pay review, even if there is no obligation to award a pay increase as a result of the review. Some contracts provide a specific basis for such reviews, linking then to individual or company performance, or the rise in the cost of living, or a combination of factors. If this is the case, the employer must conduct pay reviews within this framework, or it will be in breach of contract. Rates of pay may be governed by the outcome of collective bargaining if an employer recognises a union for these purposes. If this is the case, an employee's contract will usually include an express clause to this effect. In the absence of any contractual agreement, or union negotiation, the issue of pay increases is one for individual negotiation. Your decision as to whether to meet employee expectations will presumably be heavily influenced by market forces. Can you risk employees with highly marketable skills going to work for competitors if their pay concerns are not addressed to their satisfaction? 60 second guide to... Sex discrimination The Equality Act 2010 makes it unlawful for an employer to discriminate against workers because of their gender. There are four key types of sex discrimination. • Direct sex discrimination: this arises if somebody is treated less favourably because of their actual or perceived sex, or because of the sex of someone with whom they associate. For example, it would be directly discriminatory not to employ a woman, or a man purely on the basis of their sex. • Indirect discrimination: occurs where there is a policy, practice or a procedure that applies to all workers, but particularly disadvantages workers of a particular sex. For example, an insistence that a job be carried out on full time basis might amount to indirect sex discrimination because, statistically, it is still the case that more women than men have childcare responsibilities and a failure to allow a job to be undertaken on a part-time basis might mean that fewer woman than men could undertake the role. Indirect discrimination is the only form of sex discrimination that can be justified; but to do so it is necessary to show that the discriminatory impact is 'a proportionate means of achieving a legitimate aim', this is a pretty high hurdle to clear. • Sexual harassment: unwanted conduct related to sex that has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. For example, sexist banter in the workplace. • Victimisation: unfair treatment of an employee who has made a complaint about sex discrimination. For example, failing to promote an employee because she made a complaint of sexual harassment against her line manager. Employers should ensure that they have policies in place to seek to prevent sex discrimination in the following key areas: - recruitment and selection - determining pay and conditionstraining and development - promotion - bullying and harassment There is no statutory maximum to the level of compensation that an employment tribunal can award in respect of a finding of sex discrimination.