The rise of aggressive tactics against employees

Some employers in sectors badly impacted by the COVID-19 pandemic are increasingly using aggressive tactics to save money.

This may range from forcing employees to accept salary reductions which are not limited in time, to pursuing allegations of misconduct or gross misconduct as a means of reducing severance compensation.

While such measures are underpinned by the need to save money, they typically increase litigation risk, damage morale and have the potential to damage reputations.

As employees get to grips again with the challenges and stresses of juggling work and homeschooling during lockdown, employers should be mindful of greater workforce challenges and their legal responsibilities towards staff.

Employers would be well advised to adopt a responsive, responsible and reasonable approach and to carefully consider their approach before deciding on appropriate action. Time spent planning and evaluating likely scenarios and reactions is well spent.

Employers should consider their objectives and desired outcomes, whether their actions are proportionate, and whether they balance the desired outcome with acceptable commercial and legal risks to the business. Additionally, employers will need to consider the likely implications of their actions on morale, culture and reputation.


Uncharacteristic behaviour

Employers should be alive to uncharacteristic behaviours from employees, not only drops in performance but also erratic communications or changing relationship dynamics.

These may suggest that an employee is struggling and that support and guidance, or possible intervention, is required.

Employers should consider facilitating support through formal employee assistance programmes and more informal pastoral care. The should also be prepared to offer practical suggestions and intervene early in situations where uncharacteristic actions are identified.

Whilst moving immediately to a disciplinary process may be an instinctive response, employers would be well advised to consider the wider circumstances and all realistic alternatives first.

In situations where a disciplinary process is appropriate and proportionate, employers should be mindful of the basic principles of natural justice, fairness and reasonableness. The scope of investigations should be clearly defined, focused on the salient issues and should identify the relevant evidence.

Disciplinary allegations against an employee should be well particularised, clear and supported by evidence.


Challenging situations

As many businesses are currently focused on managing costs, there may be an inclination to push staff harder in challenging times.

Employers should be mindful of claims for whistleblowing, bullying or harassment, automatic unfair dismissal and stress-related personal injury claims that are likely to arise if overly aggressive management styles are tolerated or if there are dramatic changes in operational approaches or unreasonable expectations.

Greater scrutiny and micromanagement of staff may stifle productivity and creativity and create unnecessary tension in the workplace. This may give rise to an increase in grievances and workplace complaints, and, therefore, litigation risk.


Litigation risk

Employers adopting aggressive workplace strategies should consider the likely litigation risks as well as the impact and cost of defending protracted litigation. Depending on the claim, litigation may be in the High Court where the stakes, as well as costs, are higher.

Senior employees are, for example, more likely to have an incentive and the funds to litigate when the amounts on the line are high or where there are reputational issues at stake.

If resources and management time are stretched, employers should carefully consider at the outset whether protracted litigation is proportionate and the most appropriate strategy to follow.

In circumstances where the stakes are high and matters are complex and sensitive, mediation may provide a more effective alternative. It allows the parties to take greater control of the situation, and saves time and cost. It also enables the parties to reach resolution in confidence as opposed to the issues being played out in public.

Well advised employers are likely to approach difficult and complex situations having first considered all the circumstances and likely outcomes and will, therefore, be better placed to reach resolution without causing disproportionate disruption and exposing the business to unnecessary levels of risk.

Simon Gorham is partner at Boodle Hatfield