Michelle Clarke: Welcome to this Mills & Reeve employment podcast. I'm Michelle Clarke.
Afsarah Haque-Hassan: And I'm Afsarah Hassan.
Michelle Clarke: In our recent episodes, we've looked at what are perhaps some of the key facets of employee management. Jameel and Neil share their experiences of handling investigations. Richard Barker and I looked at the input and the growing input of AI in employment processes, and recently James and David looked at performance management.
But for this podcast, we decided to change our lens towards behavioural issues and what employers should be thinking about when having to manage behaviours that perhaps aren't quite meeting the standards in the workplace. Now, such issues can be quite difficult to manage, and there can be that difficulty in balancing culture and operational effectiveness, while at the same time also managing your legal risk.
And with the upcoming changes that we're going to see to unfair dismissal rights, there seems to have been a focus perhaps on future-proofing performance management.
When we're thinking about managing behaviour, there's that element, isn't it, that almost employers can fall into a trap before they even start taking any actual action, can't they?
Afsarah Haque-Hassan: Yeah, and I think it's important not to just jump immediately into a full-fat disciplinary process. So actually, things to consider, is it an issue of misconduct, or sometimes it could actually be things like performance issues.
Even sometimes, it could be a relationship issue or a misunderstanding. So not everything actually needs a disciplinary process, and sometimes it's as simple as a conversation. And those things can be easily resolved, often through coaching, facilitated conversations, or clear management guidance first.
Actually, Acas guidance does make it clear for employers to consider whether concerns can actually be dealt with informally first. So, employers should think about this to avoid creating unnecessary escalation where behaviour can be remedied informally. Informal remedy also might not always be the right step, but it is something that shouldn't be overlooked, I think
Michelle Clarke: Yeah, I'd agree with you on that.
I think sometimes the temptation is there that almost the, there's a feeling that if we're taking fast and strong action by invoking the formal disciplinary process straight away, then that's going to be the safest route. Whereas you're completely right, sometimes an informal approach or a conversation can have a much better impact and can also give the encouragement to employees to improve the behaviour that's causing the issue.
And I think if you even take a step perhaps even further back before we're even looking at is it informal or formal being the right path to take to address a behavioural issue, there's perhaps a, a chance of becoming unstuck, even when just identifying what the behavioural issue actually is. It's really easy to get a little bit lost in focusing on labels.
So as an example, if, say, we've had it reported to us that attendees at, by attendees at a meeting that an employee has been interrupting others when they're speaking or raising their voice, we might naturally look at the behaviour through the lens of being disrespectful or even aggressive behaviour, and then approach it on that basis of those labels.
But it could lead us down the wrong path, or perhaps unnecessarily to a more emotional and contentious response from the employee. If something is labelled automatically as being aggressive without any context attached to it undoubtedly, that's going to cause an emotional response and perhaps some confusion over what the actual issue is.
Whereas if rather than we're saying to employee, "At a meeting, you were aggressive and disrespectful," we may get a better response and better engagement from an employee if we're saying, "At a team meeting, you interrupted two colleagues, and you raised your voice, and several attendees raised concerns afterwards."
That sets it into the context for the employee. It's easier for them to distinguish their behaviour that is causing concern and should then lead on to a more open conversation that's understood by all sides. As well as encouraging employee engagement, approaching it by looking at what's actually happened rather than using broader labels might also help the managers who are having to deal with the issue when deciding whether or not it should be informal or formal, or what has happened and how they should be approaching it.
Discussions that I will often have with my clients is very much pinpointing what is it that is the issue before we get too far into what should we be doing to address it first?
There can also be some additional factors that might play into behaviours as well, aren't there?
Afsarah Haque-Hassan: Yeah. Thanks, Michelle and I agree with that. So, what we are seeing a rise is in complaints about tone, communication style, and respect at work, and workplace relationships.
So alongside this, I don't know about you, Michelle, but we're also seeing an increase in employees being more vocal about sharing things like medical conditions and sometimes how that might impact their behaviours, particularly where an employee is neurodivergent or has a neurodivergent condition.
So, some examples I've come across where an employee can experience an impact on the communication style because of a medical condition are things like autism or mental health conditions that affect their ability to interact with colleagues. So, employers might start needing to think about whether there could be health-related reasons which cause or have an impact on an employee's behaviour in question.
So that might not always be an easy spot. As an employee, they might not feel comfortable to share their medical condition straight away, or they might not be as open about it. On the other hand, there might be other employees who are quite vocal, and it is an easier w- easier sort of conversation to have.
So, with that being said, responses and explanations given by employees can be given both in an informal and formal process and they should be carefully considered in both contexts. And it might actually help narrow down the reason for the unknown behavioural issues. And I think it's also important to consider where an employee might have a disability because that's also something that should be considered before a decision is made about any sort of appropriate sanction going forward.
And sometimes what might be helpful for an employer is to consider the need to obtain medical evidence, so whether that's by way of occupational health advice or requesting the medical evidence from the employee themselves, and it might actually mean at some point that the employer is then, might be under a duty to make a reasonable adjustment, and that might again resolve the issue.
So even in cases where the behavioural issue is clear, there could be a hidden context and a risk that employers that they might need to watch out for.
Michelle Clarke: Yeah, I'd agree, and I think it's certainly something that we are seeing more and more of either coming through to us because it's been identified at an early point in the procedure, or else it's almost been identified too late in the procedure.
And there's an element there of if there's no oversight or if a manager perhaps doesn't really know what they're doing about things, and it's almost going through the motions, employee could bring something to the table that is quite a key consideration. And as you were saying, if someone could be linked to a disability that we really need to be taking note of and that's just overlooked.
And it's one of those things, isn't it? And I suspect we both say this quite often, it's much easier to try and, rectify a problem or to put support in place at the time rather than firefighter after the issue has already cropped up. And a, a big part of that, I think when discussing behavioural issues, and we touched earlier on informal versus formal, but having that clear process in place, but also making sure that managers who are responsible for addressing behavioural issues actually know what they should be doing, is going to be key.
As much as you may be comfortable that there's clear evidence of behavioural issue, you need to go through that proper process to make sure if it's something where actually it's an informal matter, we can help employees to improve that, that we're doing that properly. If it's something that falls on the more serious side, then there's going to have to be a sanction, that we make sure that we're going through the proper process we should be doing.
We're gathering that evidence, we're making that decision, we're forming that view. Having a process in place is always going to be a good starting point. And the Acas code on discipline and grievances is going to be an important reference. Very likely, if you have a policy in place, that's something that you've borne in mind when pulling that together anyway.
If perhaps you're a smaller employer and you don't have a disciplinary process in place or a dedicated HR resource, that is a good starting point if you come across behavioural issues and you're not too sure where to start with your process. But that being said, having a disciplinary process is not enough by itself, as I'm sure I think Afsarah and I are both relatively new employees at the time we're recording this.
And I suspect that many others who've been through induction processes like we have, you're often shared with a lot of policies. You have a lot of reading to do. So, if there's a new employee joining, you've sent them a copy of the disciplinary policy, or you've got a long-standing employee, they know that they can get them on an intranet or a paper copy held at site.
That's fine. They know that process is there. It doesn't necessarily mean that they have a good understanding about it. And so as much as managers who are overseeing a process might be asked to read it, make themselves aware of the procedure and what they should be doing, there's the element there of not all behavioural issues are being equal.
And so it's important that managers know what they're doing. So as an example, if it's HR's responsibility to assign a manager to address a behavioural issue, perhaps consider building in guidance from the outset to that manager of what they should be doing, whether it's a guidance note, an email, or perhaps a telephone call before they get going on things so there's things they're aware of, what they should be doing, the timings of investigation steps, or of where they should be finding support.
And the support is, I think, quite an important point as well for managers. Some behavioural issues are quite complex. Afsarah's touched on some of those complexities, and sometimes it can almost feel a little bit lonely in trying to address behavioural issues. So it's important that managers know who they can go to for support.
And from an HR perspective, as we mentioned earlier, it's going to be a lot easier for you to support during the process rather than having to firefight at the end if you've only become aware of it after a sanction's been issued or something like that. And engaging HR can also ensure that there's consideration being given to consistency.
Afsarah and I probably see quite a few cases that have reached a tribunal or at an earlier point where what employee's raising is "actually, I've done this and I've been, say, dismissed, but Joe Bloggs has done much worse, and he didn't even get a slap on the wrist." And there's that consistency element.
Not all cases are going to be the same, but it is perhaps more likely if HR are involved that they'll have a better idea of consistency and approaches that have been taken before that can then be factored in when addressing a behavioural issue that's in front of them now, and to give that clear guidance to managers on precedent and consistency, and that should help to avoid situations where employees who are displaying the same behaviours are being taken through different processes or given different sanctions.
Afsarah Haque-Hassan: So yeah, without wanting to end on a negative note, I'd say that the common mistake that we see employers making when trying to manage behavioural issues are going formal too quickly, and I think often when there are behavioural issues by employee, it can disturb the culture and the wider dynamic of a team.
So, the temptation is to resolve the issue as fast as possible, and the initial feeling is to just go formal as soon as possible. But like we've discussed already actually, some of these issues can be resolved with a conversation or even starting those conversations earlier on rather than rushing through a process and, as you said, Michelle, trying to put out a fire.
So, it's just managing things early on, having conversations early on to avoid that. And I think another thing that we've discussed as well is using vague labels instead of specific concrete behaviours. So like you discussed, Michelle earlier on it's about rather than saying, "Oh, you were quite aggressive and you came across in this way," it's the way you speak to the employee and discussing, for example, the impact of their behaviour perhaps, or just putting it to them in really plain English as to what's happened and what they've done.
And sometimes what might help is before having those conversations. What I found helpful when I worked in-house is actually helping caseworkers and managers create a list of allegations. So, following a who, what, when, where, and why approach because that often takes out the emotion. So it's quite targeted, and it's a clear conversation then.
And I think sometimes that assists the process. And another thing is to also ensure as employers that we're not lo- overlooking disability or wellbeing factors. Like we discussed, sometimes, especially what we're seeing often now more than ever, is employees might... some employees might struggle to engage with the workplace environment, and that might be accounted to by a disability or wellbeing factors, whether that's a neurodivergent condition they're struggling with or something more substantial that might be going on.
So having those conversations might give light to that. And then like you said as well, Michelle, treating similar cases inconsistently might be something that's brought up during proceedings. And just making sure that there's a uniform approach that's followed is quite helpful.
And then also making sure that the wider context is considered. I think sometimes what we come across is you look at something from a bird's-eye view, and I think as lawyers, we often get the whole process when something's gone wrong, so we're able to look at it and zoom out. And what you realize is actually- What seems to be a struggle sometimes with employers is not considering the wider context and in the whole.
So, trying to do that from the outset, I think, is a really helpful sort of strategy when dealing with behavioural issues. So yeah, I think they're the things that I would finish on and leave with the listeners.
Michelle Clarke: Yeah. I'd agree. I think on your final point around wider context, it's rare that something happens in a vacuum, and you're completely right.
Just taking a tunnel vision to only look at that and not perhaps taking the step back and seeing what environment has this occurred in? Have we had this happen before? Is there perhaps an issue with management instruction as well? There are many elements that it's worthwhile having that step back, as you say to look at.
That brings us to the end of this Mills & Reeve employment podcast. Thank you for joining us both, and please do follow and subscribe to this podcast if you haven't already done so, to keep up to date as we release them once a month.
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