Lloyd’s of London has been in the news because it has proposed significant steps to address the notorious levels of misconduct in its sector, as well as tackling bad behaviour across its network. With the Worker Protection Act coming into force on the 26 October 2024, which stipulates new proactive duties on employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace, precautions taken by Lloyds may have been triggered by the new duties from this Act – but have opened the floor to several questions, including how do we measure misconduct in third party situations generally? And what falls in this remit?
Employers are entitled to take action against employees where their conduct falls below the standard reasonably expected. Where this is within the workplace, this is usually easy to address. Outside of this, it becomes harder: employer’s do not have an unfettered right to control employee’s behaviour when they are “off the clock”.
Where misconduct takes place either outside of working hours, or outside of the physical workplace, the key is to consider whether an employee’s actions are connected to or could influence their work.
Work parties are generally classified as a work event, and an employer could justify disciplining an employee whose conduct slipped at that event. However, the difficulty comes if employees then decide to carry on work drinks at another bar. An employer would have to establish if this was in the course of the person’s employment, to justify taking action.
Another example is a rogue employee who decides to comment offensive or harmful comments on their personal social media, whilst having their workplace listed on their accounts. Can the employer take action? It largely depends on the employee’s role and the impact of their comments on the business. It’s then up to the employers to follow the correct procedure, refer to their internal conduct policies, and, depending on the severity of the misconduct, follow disciplinary procedures in line with the ACAS code of practice.
Prevention is better than cure. Businesses must ensure they have clear and updated policies in place, and communicate these effectively to their employees. Enforcing a clear standard of behaviour, whilst taking reasonable steps to reduce the possibility of harassment at work parties, where employees will be drinking, is important. Practical steps I recommend to my clients in these cases is flagging your policies when sending around Christmas party invites. For example, attaching a link on the invite as a ‘reminder’ of the standard of behaviour that is expected. A step further, would be implementing a separate alcohol and entertainment policy. As the lines between work and play are easily blurred at similar events, it’s important to mark these clearly and communicate behaviour expectations – this will minimise any ‘grey area’ and ensure businesses are taking all the necessary precautions.
Conduct policies are also only as good as their enforcement
Conduct policies are also only as good as their enforcement. Managers should be adequately trained and well-versed in these practices, and lead by example, as conduct policies are best implemented from the top-down. Risk-mitigating is key in protecting staff and will help prevent damaging claims further down the line. Far too often, businesses tend to update a policy after an incident has already happened. It’s important, particularly with the introduction of bye-laws cracking down on misconduct, to take a proactive approach, and encourage conversations around appropriate work behaviour in the office.
It’s important to acknowledge that over-regulation can be harmful, and create fear and confusion, for both employers and employees. There are also concerns the introduction of Labour’s new employment rights bill, could discourage overseas businesses planning to hire and expand their operations the UK. However, the UK sits mid-range globally in terms of employment laws. Countries like France and Germany have much stricter regulations, yet still attract businesses. Most clients I speak with expand in the UK due to strategic needs, with employment laws being a secondary consideration, often decided after committing to expansion. Therefore, these changes are unlikely to significantly effect the UK’s appeal as a business hub on a standalone basis.
As the political landscape is changing, we find ourselves in a transitionary period – which can be uncomfortable and cause confusion. The new employment law changes proposed have little detail currently. Rather than being seen as taking rights away from employers, the aim appears to be to hold employers to account to demonstrate that their processes are fair and reasonable. Hopefully, these changes will encourage more open conversations around what constitutes workplace misconduct, and encourage businesses to take a proactive approach at refining and implementing clear conduct policies from the top down – which will ultimately have a positive impact on both employers and employees alike.
October 18, 2024
Navigating misconduct in the workplace: a lawyer’s perspective
by Jess Bass • Comment, Workplace
Employers are entitled to take action against employees where their conduct falls below the standard reasonably expected. Where this is within the workplace, this is usually easy to address. Outside of this, it becomes harder: employer’s do not have an unfettered right to control employee’s behaviour when they are “off the clock”.
Where misconduct takes place either outside of working hours, or outside of the physical workplace, the key is to consider whether an employee’s actions are connected to or could influence their work.
Work parties are generally classified as a work event, and an employer could justify disciplining an employee whose conduct slipped at that event. However, the difficulty comes if employees then decide to carry on work drinks at another bar. An employer would have to establish if this was in the course of the person’s employment, to justify taking action.
Another example is a rogue employee who decides to comment offensive or harmful comments on their personal social media, whilst having their workplace listed on their accounts. Can the employer take action? It largely depends on the employee’s role and the impact of their comments on the business. It’s then up to the employers to follow the correct procedure, refer to their internal conduct policies, and, depending on the severity of the misconduct, follow disciplinary procedures in line with the ACAS code of practice.
Prevention is better than cure. Businesses must ensure they have clear and updated policies in place, and communicate these effectively to their employees. Enforcing a clear standard of behaviour, whilst taking reasonable steps to reduce the possibility of harassment at work parties, where employees will be drinking, is important. Practical steps I recommend to my clients in these cases is flagging your policies when sending around Christmas party invites. For example, attaching a link on the invite as a ‘reminder’ of the standard of behaviour that is expected. A step further, would be implementing a separate alcohol and entertainment policy. As the lines between work and play are easily blurred at similar events, it’s important to mark these clearly and communicate behaviour expectations – this will minimise any ‘grey area’ and ensure businesses are taking all the necessary precautions.
Conduct policies are also only as good as their enforcement. Managers should be adequately trained and well-versed in these practices, and lead by example, as conduct policies are best implemented from the top-down. Risk-mitigating is key in protecting staff and will help prevent damaging claims further down the line. Far too often, businesses tend to update a policy after an incident has already happened. It’s important, particularly with the introduction of bye-laws cracking down on misconduct, to take a proactive approach, and encourage conversations around appropriate work behaviour in the office.
It’s important to acknowledge that over-regulation can be harmful, and create fear and confusion, for both employers and employees. There are also concerns the introduction of Labour’s new employment rights bill, could discourage overseas businesses planning to hire and expand their operations the UK. However, the UK sits mid-range globally in terms of employment laws. Countries like France and Germany have much stricter regulations, yet still attract businesses. Most clients I speak with expand in the UK due to strategic needs, with employment laws being a secondary consideration, often decided after committing to expansion. Therefore, these changes are unlikely to significantly effect the UK’s appeal as a business hub on a standalone basis.
As the political landscape is changing, we find ourselves in a transitionary period – which can be uncomfortable and cause confusion. The new employment law changes proposed have little detail currently. Rather than being seen as taking rights away from employers, the aim appears to be to hold employers to account to demonstrate that their processes are fair and reasonable. Hopefully, these changes will encourage more open conversations around what constitutes workplace misconduct, and encourage businesses to take a proactive approach at refining and implementing clear conduct policies from the top down – which will ultimately have a positive impact on both employers and employees alike.
Jess bass is a partner at Oury Clark solicitors