From unexpected staff absences to reputational damage and concerns about workforce safety, employers could be facing serious issues as a result of the UK riots. Benefits Expert spoke to employment lawyers to find out more about employer’s legal options to mitigate the fallout.
As police begin to arrest and imprison people for their part in the anti-immigration riots across the UK, employers may find staff are missing from work.
And it won’t just be people that have taken part in the physical violence. Keyboard warriors have been warned that those inciting violence will also face the full force of the law.
Unplanned staff absences from work are not the only issue employers might face.
Employers may face reputational damage as a result of rioting employees, not to mention the potential threat that such individuals pose to the business and colleagues.
But managers and HR have a number of options to consider when it comes to disciplinary measures, not least the legal right to withhold pay from workers remanded in custody.
Withhold pay
The 2011 riots, which started in London and spread to cities beyond the capital, led to an important judgement that still stands.
The Employment Appeal Tribunal for Burns v Santander UK Plc UKEAT/0500/10/RN ruled that employees may lose their right to pay if they are remanded in custody awaiting trial because it represents an “avoidable impediment” to their ability to work.
Thirteen years later, the ruling “is still good law”, says Matt Jenkin, partner, employment at law firm Herrington Carmichael.
“An employer faced with a situation of an employee remanded in custody is entitled to decide not to pay the employee during the period of remand. The employee will not be able to pursue a claim for unlawful deductions from wages even though at that stage they have not actually been convicted of any criminal offence,” he says.
“There would be a similar result in the event that an employee’s bail conditions prevented them from attending their place of work.”
Melanie Stancliffe, employment partner at law firm Cripps, agrees that an employer can lawfully withhold pay if an employee is held in custody, but adds that this is “in certain circumstances”.
“Any employer facing an employee being remanded in custody for the riots, will need to check the terms of that employee’s contract, the written and the implied ones, and its policies to see whether it is obliged to pay,” she says.
“If an employee is paid by the hour or for work done, then usually an employer will not have to pay if the employee doesn’t do the work.”
‘Unavoidable reason’
However, Stancliffe says it’s less clear for employees on a weekly, monthly or yearly salary which doesn’t expressly link payment to performing the work.
“If the employee has simply not turned up, because they’ve been remanded in custody, the employer will need to decide whether the custody was an ‘unavoidable reason’ preventing the employee from being able to work.
“Most employers will consider that it was avoidable and therefore that no payment is due.”
But she cautions: “If the employee was unwell or suspended at the time, the position is different. A sick employee is entitled to sick pay and a suspended one usually to their full salary.”
Out on bail
If the employee suspected of being involved in the riots is released on bail, employers might consider suspending the individual.
Stancliffe says the employer will need to consider if there is reasonable and proper cause for suspension, which there may well be if an employee has been charged for a violent offence.
“The suspended employee will usually be entitled to pay, however, which may make suspension less attractive,” she says. “The employer may decide it can take steps to manage the situation so the employee could continue working.”
Threat to the business
Jenkin cautions that suspension shouldn’t be seen as a standalone disciplinary sanction.
“An employer should only use it as part of a disciplinary investigation where it is appropriate to suspend the employee under investigation,” he says. “For example, where there is a potential threat to the business or the risk of interference with witnesses.
“If an employer is contemplating taking disciplinary action against an employee who has been bailed in connection with the riots, then suspension may be an option but would need to be justified as part of the investigation process.”
Police powers
For employers considering taking broader disciplinary action against an employee, Stancliffe says that the employer should think about whether they should wait for the outcome of the criminal process, so they don’t interfere with it.
“The police and CPS will have greater powers to obtain CCTV and other evidence, so it makes sense that the criminal process comes first and the employer usually waits,” she says.
But she adds: “If an employer did take disciplinary action, the first step would be to consider suspension, which could be appropriate if there is a risk of harm to colleagues or they could meddle with the investigation.”
Conduct expectations
The next step is to investigate, Stancliffe says. This will cover the employer’s expectations of employee conduct outside of work. It will also look at whether the employer has made it clear that activities outside work could result in disciplinary action. Stancliffe adds that usually this is where the employer’s reputation is damaged because the employee can be identified as working for them.
Any employer investigation will also need to examine the evidence of the employee’s wrongdoing. Stancliffe says that this is “usually easier to establish if the employee has had a trial” because to be convicted the court would have been satisfied that there is no reasonable doubt of the offence. She says that this standard of proof is higher than the proof an employer must show.
Jenkin says disciplinary for rioting would typically fall within the category of non-work related misconduct.
He says: “Often employers will want to take action including dismissal given the potential damage that could be caused to their reputation. However, and was seen in a recent case, employers relying on reputational damage as the reason for dismissal face having that decision scrutinised and potentially criticised by an employment tribunal.
“As such, reputational damage needs to be thought through and explained to the employee as part of the reasoning for any disciplinary decision.”
Keyboard warriors
When it comes to people that stoked violence from a computer desk, or other media, the same employment law applies.
Jenkin says: “If an employee is identified as having incited violence on social media, I would expect employers to have concerns over reputational damage in the same way as if they had physically participated in that violence.
“As with any disciplinary action, a fair process will be crucial including a detailed investigation. Employers will need to avoid knee jerk reactions.”
Actions online
Stancliffe adds that, again, an employer would have to look at its own policies to decide whether activities outside work can result in disciplinary action.
However, she says: “Most social media and IT policies will state that even if the employee’s actions are online, outside of work hours, on a personal device and on their own social media account, [they] can lead to disciplinary action.
“Employment tribunals regularly decide on the fairness of dismissals for cyber activities and the key issues are whether there is a link to their employment and whether the employer had made it clear that the acts undertaken could lead to disciplinary action.”
With rumours of further riots being organised, forcing businesses to shutter premises and tell staff to stay away, employers will need to consider all their options for dealing with employees involved in the unrest.
