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On Friday I sat through a meeting where an employee went through half of a box of tissues, recounting the trauma of her removal from her employer’s premises in the context of a termination by way of a generous compromise agreement. At the start of a redundancy or disciplinary process, we are often asked to advise employers on whether they can walk an employee off the premises, suspend him from the intranet and get back his mobile phone, laptop computer and security pass. The employment law answer is a straightforward “no”, business pragmatism often dictates otherwise.

The fairness of a dismissal will in most situations demand a procedure spread over a number of weeks.

When dealing with a performance or conduct dismissal, fairness requires an employer to adhere to the principle of natural justice. In particular, no decision should be taken before the employee had a chance to know the allegations against him or her, prepare a defence and answer the allegations at a disciplinary hearing. During the tribunal hearing, part of the cross examination of the dismissing manager will almost always be aimed at demonstrating that the decision was taken before the disciplinary hearing.

When dealing with a redundancy process, consultation is the key to fairness. The purpose of the consultation being to hear the employee’s objections to his or her selection for redundancy and attempt to find an alternative to the dismissal. In an unfair redundancy tribunal hearing, the employee’s representative will attempt to show that the consultation was a sham and that the employee had no chance from the outset to save his or her job.

Disconnecting the employee’s access to the intranet and getting company property back at the start of a procedure always carries a risk that it will provide some ammunition to the employee’s representative. It will be difficult to convince a tribunal that it was not an indication that the decision to dismiss was taken at this stage. Employment law would dictate dealing with this at the end of the procedure. This is where advice obtained from ACAS or insurance based legal advice is likely to stop.

Despite the risk, we see many employers whose policy appears to be to escort the employees back to their desk after the initial meeting, give them 10 minutes to clear it under the watchful eyes of a manager, get the company property off them, escort them out of the door and deactivate their company intranet access within minutes of their departure.

The answer to the question of whether to do this is to carry out a risk assessment, on a case by case basis. In effect, what does the company risk by leaving the employee in place with their access to the company computer system intact?

In most cases, an employee receiving an invitation to a disciplinary hearing or to a lesser extent to a redundancy consultation meeting, will instantly lose his or her trust and confidence in and loyalty to their employer. The knee jerk reaction will be for him or her to want to delete or download all kinds of information to prepare their defence, prepare their future job interviews and even sabotage their employer’s computer system or blackmail their employer into settling.

A little spine chilling story: one of our past clients was a company helping with the sale and purchase of businesses. Their involvement with their clients or potential clients was always extremely confidential and could have a significant impact on their clients’ share prices. The employer took advice from their previous employment lawyer regarding one of their employees at risk of redundancy. The employee had previously lodged a grievance for unfair allocation of work and discrimination. They felt that he was likely not to take the news of his selection for redundancy very well. Their employment lawyer advised them against cutting off the intranet access or getting the security pass back before the end of the redundancy process.

A few weeks before the tribunal hearing the employee, as part of the documents he intended to rely on at the hearing, produced a list of all the employer’s clients and prospects. The list had been printed the weekend after his suspension. The employee’s weak case of unfair dismissal case settled for a sum in excess of the value and merit of the claim.

When we are ask the question about disconnecting access to the intranet and return of company property, we will always ask the client to carry out a risk assessment, for example:

• From what you know of the employee, how is he going to take the news?
• What information does the employee have access to?
• What is on your intranet system?
• Is the employee’s computer content saved externally?
• Does the security pass enable the employee to have access to their offices outside business hours?
• What is the company culture with regard to people management?

In assessing the risk of an unfair dismissal, an employer should always take into consideration the calculation of damages and in particular the Polkey deduction. A tribunal must award a sum that is just and equitable in the circumstances.

Let’s take an employer who decides to take back the security pass of a person accused of expenses fraud during the suspension hearing. The employer may lose the unfair dismissal claim because the decision was taken before the disciplinary hearing. However, the compensatory award is likely to be reduced to nil, if the employer has strong evidence of the fraud itself.

If we consider a situation where a 63 year old employee is the only account manager made redundant out of a team of 10 account managers, the stakes are much higher. Withdrawing the security pass after the first consultation meeting could lead to a finding of unfair dismissal and age discrimination with uncapped damages.

The cost of retrieving information, the damage done to the remaining staff’s moral are also substantial issues which need to be taken into account when taking the decision.

How do you deal with this issue? Do you have any horror stories or best practice you want to share?

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