Disciplinary procedure – free lessons from Jonathan Ross and Carole Thatcher

Thursday, February 5th, 2009 - Disciplinary Procedure, discipline, Legal


Disciplinary procedure

In light of the recent cases of use of the disciplinary procedure within the BBC with regards to Jonathan Ross and Carole Thatcher, there are valuable lessons that employees can learn from how to handle disciplinary procedure issues once you find yourself advised that you are subject to a discipline case.

Both Ross and Thatcher commited acts of dubious to high moral stupidity, while on duty for an employer – the BBC. But it is how they handled the cases once advised they were under the BBC’s disciplinary procedures that was key to defining their personal outcomes.

The media have suggested in their reporting and editorial copy, that one was retained because he was key to the BBC’s commercial success, while the other was a hounded or hated child of an ex-Prime Minister. I can not comment as no one in the public environment – rightly – has full access to the full information: disciplinary procedures remain private. But, although there may be some evidence behind these rumours, and much as though those internal drivers are an input to the decisions making process, once a disciplinary procedure has been started all organisations are legally obliged by their own defined procedures, and hence will pay more attention and undertake the process to these procedures. No organisation, and particularly the BBC wants to be sued by a disgruntled dismissed ex-employee through an employment tribunal, where there are often few clear and outright winners and hence high legal costs. Add in the bad publicity and its effects on future recruitment, most organisations will choose a negotiated settlement over testing their own procedures in a high-cost court.

Within 48hours of both incidents, one party had issued an apology while the other resolutely refused to. It is interesting to see how Ross issued his apology – he aplogised to the wronged party (the wonderful actor Andrew Sachs), over going into detail of the act committed. The key here is that the employer – the BBC – had a clear and quick acknowledgement of wanting to reach a resolution by Ross, without admitting liability.

In Thatcher’s case, once advised of the issue, a defence was thrown up which suggested it was a private matter over trying to suggest a resolution was being sought. Does it matter how the case came to light? No – because most organisations will have an internal employee complaints procedure, which allows them to manage their internal PR and not be subject to charges of breaking basic national or employment law. Hence Thatcher’s agent suggest that it was an internal snitch with an agenda doesn’t really matter under employment law – it’s the fact an issue has been raised which needs to be addressed.

Another defence issue being brought up by Thatcher’s agent is that the time scale between the issue occurring and the complaint being raised is key. Actually, as long as it is raised within a reasonable timescale – often taken to be in proportion to the possible offence committed – it could be up to anytime, but is often legally suggested to be within a 90day/one year window. Generally, issues which break basic national or employment law – such as racial discrimination – could be fairly brought up at any time in the following 12months. How does an employee know how serious an issue is? Most organisations have an induction procedure followed up by a communications procedure, which advises of the companies values and key policies, and where in example they fit into the companies assessment of either a minor or major misdemeanour under their disciplinary procedures.

Media people often have a strong version in their contract of employment – often a separate section over a paragraph in a standard employee contract – in case the employee brings the organisation into disrepute. The reason for this is that clearly media operations have a higher profile over normal commercial operation employees, and hence anything and everything they say comes into a greater spotlight. However, this is a legal catch-all clause for the unseen instances, such as when the membership list of the British National Party leaked on to the internet.

Having entered the procedure, both employees were suspended. This would need to have been done in writing, with the letter outlining:

  • The allegation or issue
  • The state of the investigation
  • The associated timescale
  • The status of the employee
  • A communications procedure – which may detail changes in who their manager is (often transferred to HR), as well as who they can communicate to

The key issue now for the employee, if they wish to retain their employment, is to reach a swift resolution. It often helps to have a friendly or experienced face to advise them, and also act as their independent “friend.” Friends are allowed to attend second level disciplinary meetings, and can be almost any person. If you have to pick a friend, then personally my suggestion is to choose them in the following order: Union representative; former HR manager or retired line manager; solicitor. Union representatives are the most effective, as they will know of similar cases in both your company as well as other similar companies, and will have access to some of the best legal HR advice. The use of a solicitor could terminate your opportunity to return to that employer if deployed too early, so hence I placed them last – you want to manage the situation, not escalate it.

In the Ross case, it was fairly clear from the speed and clarity of statements made by Director General Mark Thompson a week after transmission of the offending tape, that Ross had accepted his part in the incident, and fully accepted the judgement handed down. Thatcher’s agents protestation and even stronger suggestion that her and her client were now due an apology, that they miss calculated the situation and failed to take steps early enough.

Disciplinary procedures are not “exit conveyor belts” and often they have resolution doors written in to them. As the employee it is your duty if you want to retain your employment options to accept there is a middle ground, and to find it with your employer to be able to access a suitable solution.

Does this mean that finding a solution concludes that you got it wrong? No, and in what could have been minor situation like Thatcher’s where the BBC drafted an apology statement, the BBC wanted a solution – but at present it appears it was turned down and rejected. In the case of Ross, accepting the failure and more so publicly as he did, a solution was reached and against strong media and wider national criticism the management of the BBC supported his return.

The key for all employees is that whatever the situation when advised you are subject to a disciplinary situation, is that it is resolvable – in most cases, you can and will retain employment. The outcome after that point is subject to your willingness to be receptive to the issue, quick in showing willingness to reach a solution, and aware of the need to reach a middle ground if you want to retain your existing job. Not talking early enough and denying the problem will only conclude in one result – the exit door.

Good Luck!

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