It is advisable that all companies have an Employee Handbook which details the procedures and expectations of the Company regarding specific conduct by its employees. Large parts of the Handbook will be deemed to be “non-contractual”, which means that those provisions can be varied unilaterally by the Company and so changes do not need the consent of the employee.
Solicitors are often engaged by companies to draft the Employee Handbooks. If those are “off the shelf”, they are often drafted sufficiently widely to apply to all industries, with the result that they will not apply specifically to the work practices of the Company.
This approach can often be acceptable – in the case of provisions relating to “disciplinary process” and “grievances”, those are usually drafted to comply with the ACAS Guidelines, which will apply to most industry sectors. In this situation, the “one size fits all” approach works.
Where it does not work, is in relation to examples of employee behaviour which represents “misconduct” and “gross misconduct”. In the Employee Handbook, examples will usually be given which allow the employees to understand how certain kinds of misconduct will be treated by the Company, and therefore what sanctions may be imposed if they are found to have done those acts.
It is impossible for the Handbook to provide for every possible breach, but normally around 10 or 12 examples are provided. These should be different categories which it is expected that most breaches could be allocated to.
To be helpful for the employees, and to provide a defence to the Company if challenged, these should apply to the specific nature of the Company’s business. If they are so broad that they could apply to all industries, they will do neither.
Generic handbooks will often provide around 20 very broad categories of “misconduct” and “gross misconduct”, one of which virtually any kind of misconduct, no matter how low-level, could be applied.
This may be helpful to the Company as the approach effectively provides “catch all” categories into which most kinds of misconduct can be dropped. However, those are open to challenge if abused.
Cases of Employee Handbooks Being Used?
I was recently instructed by a client to defend him against a disciplinary charge of “gross misconduct” in the workplace. A finding of “gross misconduct” is punishable by summary dismissal, with no notice pay payable, with the attendant negative reputational impact, and so it was a matter with far-reaching ramifications for him.
The employer had a number of divisions, with the Handbook drafted to apply to all of those. It was a “cookie cutter” version which made no reference to the industry in which he worked, deliberately drafted from a high level to apply to all the divisions of the Company. It contained 33 broad examples of behaviour that the Company deemed to be “gross misconduct”.
Accordingly, it provided no practical guidance to him in his industry, with no specific examples of his day to day conduct which could be deemed to be “gross misconduct” provided. By applying to all, it applied to none.
The 33 examples included “Failure to follow Company policies and procedures” and “Failure to follow reasonable management instruction”, which were clearly drafted to catch almost any breach, even if very low level.
It is likely that if the company tried to shoehorn trivial breaches of this into those categories, and then dismiss the client, he would have a strong claim for “unfair dismissal” as these would fail the “fairness” test which the Employment Tribunal (“ET”) would apply when hearing the claim.
Another example of conduct purportedly punishable by summary dismissal was “Use of a hand-held mobile telephone whilst driving on Company business”. If an employee was dismissed for this offence, which carries only a civil penalty of 3 points on a driving license, an ET is likely to find that it was a disproportionate sanction.
Merely because a Company deems an act sufficiently serious to be “gross misconduct”, it does not mean that an ET would agree. Categorisations should be objectively justifiable.
Contact One Of Our Employment Solicitors Today
Meaby & Co have significant experience in both drafting Employee Handbooks and advising employees on their effect. Should you require advice on the above, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or firstname.lastname@example.org.
Meaby&Co is authorised and regulated by the Solicitor’s Regulation Authority (SRA Number 447880) and registered in England and Wales with registered number OC322672 at 2 Camberwell Church St, London, SE5 8QY.