Managing workplace relationships: What we can learn from Barnaby Joyce

Everyone’s favourite Kiwi/Australian politician Barnaby Joyce has been in the spotlight again recently due to his upcoming interview with his partner Vikki Campion on Channel Seven’s Sunday Night program. From an employment law perspective (we always see things from an employment law perspective), it has again brought to light the topic of workplace relationships. No doubt you would recall that in February in response to the Joyce-Campion relationship, Prime Minister Malcolm Turnbull responded by banning all sexual relationships between ministers and their staffers. But is this suitable for other Australian workplaces, or is this delving a little too far into the private lives of employees?

Relationships and workplace romances have traditionally been a very sensitive issue with many employers unsure how much, or how little, they should get involved. On the one hand, they have a significant interest in not only ensuring a happy productive workplace (which may not be the case should a relationship sour) and avoiding conflicts of interest, but also an obligation to their employees in relation to sexual harassment and their health and wellbeing generally. On the other hand, many employers would be reluctant to tell consenting adults what they can and cannot do in their own time, not to mention questioning the extent to which any intervention would be enforceable anyway.

Most Australians will know of someone who has met a significant other in the workplace (there’s clearly something romantic about the water cooler and the photocopier). So whilst employers should not try and stop workplace relationships, as this would be unlikely to work anyway, there are certainly steps they can take to mitigate legal risk and also to minimise potential disruption in the workplace. One such step that employers can take is implementing a ‘Disclosure/Workplace Relationships Policy’ and a ‘Conflict of Interest Policy’. These policies should, at a minimum, address the following key issues:

1. Require self-disclosure

Employees should be required to disclose any relationships to a suitable person, such as a HR manager. A discussion can then be had about any necessary changes that may be required in order to minimise risk or disruption in relation to the relationship. The HR manager may require the employee to outline that the relationship will not influence their work or the business.

Manage any actual, or perceived, conflicts of interest

Once a disclosure has been made, changes in the workplace may need to be made to manage any actual, or perceived, conflicts of interest. This is especially the case where a relationship has formed between managers and their subordinates. Common solutions to managing conflict of interest may include reassigning one or both staff members to different departments, or removing managers from any involvement in decision making regarding performance or promotion where it relates to their partner.

Beware of power imbalances

Whilst employers should generally avoid outright banning relationships, in some circumstances it may be inappropriate for the relationship to continue. For instance, in small businesses it would be impossible to shift either employee to a different department, so from a conflict of interest perspective, the employees may face a difficult decision between continuing in their role, or their relationship.

Similarly, a high level executive such as a CEO or partner involved in a relationship with a very junior employee such as a graduate may be discouraged so as to avoid any claims to favouritism or the potentially messy fallout should the relationship sour.

Outline what is, and is not, acceptable behaviour in the workplace

Whilst employers should not try and stop relationships between employees, they can certainly manage the way it manifests in the workplace. The last thing that an employer would want is for a new relationship to spill over into the workplace, making other staff uncomfortable, and affecting morale and productivity. As such, the policy should clearly outline that all staff must interact in a professional manner at all times in the workplace. This means there should be no inappropriate physical contact (such as kissing) and personal discussions should be limited.

The policy should also address sexual harassment, and outline that although individuals may have been in a consensual relationship, that does not mean that sexual harassment may not occur when the relationship ends. Employers have a duty of care towards their employees to ensure their wellbeing, and may be vicariously liable should sexual harassment occur.

Outline the consequences of failing to follow the policy

From an employer’s perspective, there are serious issues, such as conflict of interest and sexual harassment, that can be related to workplace relationships. As such, any policy on these issues needs to expressly state that disciplinary action, including dismissal, may be taken where the Disclosure/Workplace Relationships Policy or Conflict of Interest Policy is breached. This includes where an employee has failed to adequately disclose a new relationship.

Indeed, a case in the Fair Work Commission in 2015, M v Westpac Banking Corporation [2015] FWC 2087, rejected an unfair dismissal claim where a Westpac manager was fired for failing to disclose an affair with one of their subordinates.

Final thoughts

Managing relationships in the workplace need not be the minefield that employers may expect. There are some relatively easy steps that can be implemented to help manage workplace relationships that do not deprive consenting adults of their freedom and dignity to do what they please in their own time. And who knows, if a properly managed and adhered to Disclosure/Workplace Relationships Policy had been in place in Parliament House, maybe Barnaby would still be Deputy Prime Minister.

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October 30

Workplace sexual harassment and the culture of silence: Are non-disclosure agreements to blame?

Harvey Weinstein has been in the news for all the wrong reasons recently. The New York Times investigative article on 5 October 2017 exposed Weinstein’s 30-year history of alleged sexual harassment and assault of young actresses and female employees. Since this article, many other women have come forward with their stories relating to Weinstein and his inappropriate and unacceptable behaviour. Weinstein’s demise has been swift, with his removal from the Academy of Motion Picture Arts and Sciences, the Producers Guild of America and his own film production company, Weinstein Company, firing him.

At first glance, it seems inexplicable that Weinstein could continue to allegedly sexually harass and sexually assault for over 30 years without his behaviour becoming public, or charges being laid. However, what has also recently come to light is that Weinstein has reached at least 8 settlement agreements according to The New York Times. Such settlement agreements involved Weinstein paying a sum of money to the victim, who was then prohibited from discussing the matter by a non-disclosure agreement.

Non-disclosure provisions are also common practice in settlement agreements in Australian workplaces. They often involve standard confidentiality terms that prohibit either party from disclosing certain facts such as the identity of certain people and the settlement amount. Often, both parties are satisfied with this outcome. The perpetrator protects their reputation by avoiding having criminal or civil proceedings brought against them whilst the victim avoids having to take legal action and reliving traumatic experiences in a public setting. There is also a fear that career prospects will be damaged if you have a reputation for suing.

Despite the existence of strong laws prohibiting sexual harassment, this is unfortunately also an issue in the workplace in Australia. In 2016, the Australian Human Rights Commission heard 453 complaints under the Sex Discrimination Act 1984 many of which relate to sexual harassment in the workplace. It is estimated that a staggering 25% of women are sexually harassed over the course of their employment. Whilst it is understandable that victims may wish to avoid reliving a traumatic experience, non-disclosure agreements do nothing to protect other people from becoming victims and allows the Harvey Weinstein’s of the world to continue to avoid facing scrutiny. A serious question must be asked whether employers should be able to use non-disclosure agreements to keep sexual harassment claims secret.

On moral grounds, most people would answer this in the negative since an alleged crime has been committed, and that person should have to face these allegations in a court. However, there are also compelling legal arguments that employers should not be able to cover up workplace sexual harassment using a NDA.

It is an implied term in all employment contracts in Australia that employers have an obligation to provide their employers with a safe place to work. Commonly in sexual harassment cases, such as Weinstein’s, the victim agrees to settlement terms and exits the company whilst the perpetrator, usually a senior employee or manager, remains. The employer’s decision to retain the perpetrator likely places other employees at risk of experiencing sexual harassment and thus breaches the right of employees to have a safe workplace. However, because the settlement terms are confidential, and the victim is bound by a NDA, often the employees are none the wiser and have no knowledge that this implied term of their employment contract is being breached.

There is another legal argument that that non-disclosure agreements should be void as a matter of law. It has long been recognised that contracts that are contrary to public policy, such as those that are prejudicial to the administration of justice, are unenforceable. Therefore, it stands to question, are non-disclosure agreements in confidential settlements enforceable? Clearly, there is a significant public interest in preventing persistent sexual predators like Harvey Weinstein from continuing their unsavoury behaviour. There is also clearly a public interest in allowing the administration of justice to take its course.

Despite legal arguments that employers should not be able to use NDAs, unfortunately the practical reality ultimately wins. Victims who have signed NDAs are fearful of speaking out. In addition, the potential legal repercussions for breaching a NDA, depending on the contractual terms, can be quite costly. Of course, there is also the power imbalance between the employer and employee that contributes to the culture of silence and ensures NDAs regarding sexual harassment are rarely challenged.

The current use of NDA allows persistent offenders such as Harvey Weinstein to remain unchecked. Perhaps a change in the law is necessary to protect potential future victims of serial sexual harassers in the workplace.

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June 6

Travelling: it’s all in a day’s work – 3 issues employers must consider for employees who travel

Domestic and overseas travel has become highly accessible and affordable which has presented many opportunities for national and multinational businesses as employees can travel relatively easily and cheaply between offices, sites and clients. In fact, the prevalence of business travel is quite significant and in 2016, the Australian Bureau of Statistics reported 9% of overseas trips taken by Australian residents were related to business. This is quite a substantial figure and although long distance travel clearly offers many benefits for employers, it also raises questions as to their legal obligations and how to best manage employees who are away from the office and required to travel for work.

Businesses must consider three issues to ensure that their travelling employees are behaving and performing appropriately whilst also ensuring protection of the business’s commercial interests and adherence to legal obligations.

1. Manage employee behaviour and performance

Everyone would be aware of the saying: “when the cat’s away, the mice will play”. This saying is never more relevant than when employees are away travelling for work purposes, often away from their managers with little to no contact with them or others in the workplace. Whilst most employees who are travelling interstate or overseas would be sensible and senior enough to understand their obligations to behave appropriately and perform to their usual high standards, being away from their normal workplace and supervision can sometimes cause employees to lower their guard and relax their standards.

In Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) [2014] NSWDC 250, a NSW General Manager was required to travel interstate to attend a training conference. The night before the conference, a group of staff went out for dinner and later went to a nearby pub, where a substantial amount of alcohol was consumed well into the following morning. The manager attended the training conference the next day where his colleagues claimed he smelt strongly of alcohol, was relaxed, playful, smiling, laughing, enjoying himself, talking loudly, slurring his words, making animal noises and throwing lollies. The business claimed the manager was intoxicated and his employment was terminated for gross misconduct. The Court found that his behaviour did not amount to misconduct, having regard to the fact the incident was a one-off and the workplace had a culture of consuming alcohol whilst wining and dining clients. The manager was initially awarded damages of almost $300,000, which was later reduced to $90,000 on appeal.

This case demonstrates the requirement for businesses to clearly articulate the standards expected of employees whilst they are travelling and that they can and will be held accountable for their actions if they misbehave whilst they are away. It also raises issues with businesses encouraging and supplying alcohol to employees, which often increases with business travel. If staff are likely to be drinking whilst they are working, businesses should consider implementing clear policies and expectations about the amount permitted to be consumed and the behaviour that is expected of them.

2. Protect confidential information

In today’s technological age, it is difficult to imagine an employee who is required to travel for work not using a portable device whilst they are travelling, whether that be a laptop, mobile phone or tablet. Whilst this offers obvious benefits for both the employee and the business, it also raises issues of how confidential information is protected, not only from misuse by hackers or unsecured networks, but also from employee’s who have unfettered and unsupervised access to the business’s confidential information.

Employees should be required to only use devices provided by the business for work purposes and not to use them for personal purposes whatsoever. Similarly, employees should not be permitted to use personal devices for work purposes under any circumstances as it is almost impossible to recover all confidential information upon an employee’s termination or to determine where that confidential information might have been sent.

In APT Technology Pty Ltd v Aladesaye [2014] FCA 966 and APT Technology Pty Ltd v Aladesaye (No 2) [2016] FCA 203, an employee was employed by APT and worked remotely from his residential address. After suspicion of involvement with a rival company, APT retrieved the laptop and mobile phone they had issued to the employee and discovered he was servicing APT clients through a business he operated while still employed by APT. The employee had accessed and saved confidential files belonging to APT on his private computer, which were retained and used to benefit his new business. APT were successful in restraining the employee from dealing with or soliciting its clients and from disclosing APT’s confidential information.

This case demonstrates the importance of ensuring the separation of work owned and issued devices and personal devices owned by employees. Businesses must have clear workplace policies and programs which prevent employees from accessing or saving company documents on private devices, particularly when staff are working remotely away from the office with little supervision.

3. Ensure employee’s health and safety

Most employers understand they have a duty of care to provide a safe working environment for their employees when they are working in a normal workplace, however, under work health and safety legislation, there is no differentiation made between an Australian workplace or an overseas place where an employee is working, whether that be a client’s office, an airport or their hotel room. This means that even when employees are travelling overseas, employers are required to eliminate or minimise risks so far as reasonably practicable. When employees are travelling for work, a business may be required to (in addition to the usual precautions that businesses must take):

Assist employees to obtain necessary travel vaccines
Monitor official travel warnings and providing advice to the employee
Implement an emergency response policy, especially if the employee is travelling to a potentially dangerous area
Create individual business travel plans so employees have support if something goes wrong
Ensure that staff have travel insurance

In Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1, a professional actor who was engaged under a NSW contract, ruptured his Achilles tendon whilst performing in Bahrain. As the employment was adequately connected to NSW, the actor was entitled to compensation. However, in another case, Qantas Airways Limited v Watson (No 3) [2010] NSWWCCPD 86, a pilot on a compulsory break from flying was not entitled to compensation for an injury sustained in a car accident when returning to his hotel after visiting friends, as he had not been encouraged or induced to be on a road at the time of the accident by his employer.

As these cases demonstrate, an employer will not be liable for any and all injuries an employee may suffer whilst overseas or out of the office. The injury or illness must have occurred in the course of or arising out of their employment.

As the globe becomes more interconnected with continuous improvements in technology being made, it is likely that many businesses will face challenges with having a mobile workforce that are travelling between different offices, clients and countries. Being prepared and understanding the business’ obligations, will assist the business to protect its commercial interests whilst also ensuring that employees represent the business to a high standard.

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May 16

Anti-social media: 4 ways to manage social media and cyber-bullying in the workplace

Whilst technology and social media have unquestionably provided many benefits to the modern workplace and opportunities for businesses to reach a wider audience, they have also presented dilemmas for HR managers and business owners when dealing with interactions between employees. With the increased use of the internet and social media, and the fact that almost everyone in the workplace now owns a smart phone and can access Facebook, Instagram and similar social media platforms 24/7, problems that used to be left at work when the day ended and everyone went home now follow people home after work hours, which can present huge challenges for employees and managers alike.

With 66% of the Australian population now on Facebook, 20% on Instagram and 17% on Snapchat[i], social media has become a huge part of many people’s lives. The impact that social media bullying has on children and teenagers has been well publicised, with many schools now introducing programs to educate students about cyber safety. However, the impact that social media and in particular, social media bullying has on workplaces has received far less attention.

In the last few years, social media has played a much larger role in bullying claims, unfair dismissal applications and workers compensation claims, with it now not being unusual for screenshots of social media conversations, statuses and comments to make their way to tribunals and Courts in support of employee’s claims.

Whilst many businesses are now taking steps to address bullying and harassment in the workplace, businesses should also be putting steps in place to address employee’s use of social media in and away from the workplace and implementing processes for employees to report anti social behaviour that they may be subjected to from other employees when using social media.

4 steps for employers to manage social media bullying

Social media and cyber bullying is often unfamiliar territory for many employers, however, there are steps that can be taken to minimise legal risk and ensure that the workplace is a safe environment for all employees.

Implement workplace policies

The best action that employers can take is to develop bullying, cyber bullying and social media policies. A policy relating to bullying should include a definition and examples of both bullying and cyber bullying as well as what behaviour is appropriate and acceptable and what behaviour is not. The bullying and cyber bullying policy should make clear the consequences for failing to comply with it, such as warnings, suspension or termination.

Employers should emphasise that the conduct does not need to occur specifically at work. The Fair Work Commission has recognised that technology and social media has blurred the line between what is “at work” and what is not.

In Bowker & Others v DP World Melbourne Limited [2014] FWCFB 9227, the Commission held that the traditional meaning of “at work” may not necessarily apply to a cyber bully as comments made on social media (in this case, Facebook) only need to be accessed whilst the employee is “at work” to enable the employee to make an application for a stop bullying order under the Fair Work Act. This means that as long as the comments remain on social media and the employee is able to access those comments whilst they are at work, the employee will have the ability to make a bullying complaint to the Commission.

For this reason, workplace policies that are implemented must adequately address the fact that they will continue to apply even outside working hours and that employee’s will be expected to comply with the policy, otherwise disciplinary action may be taken against them.

When it comes to social media and the workplace, it is not just words that may be considered cyber bullying, but also a person’s actions. In Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, it was held that “unfriending” a colleague on Facebook could be considered to form part of bullying conduct. However, “unfriending” on its own is unlikely to constitute bullying, as in this case, it was the combination of other conduct that led to the Commission finding that the employee had been bullied.

Develop a reporting and investigation process

Each workplace should develop a thorough reporting process and investigation process which is usually set out in a grievance policy. Because of the nature of cyber bullying, and the potential for it to occur outside of working hours, often the only way that employers become aware of any issues is if the employee tells them.

It is important to ensure that employees feel comfortable reporting issues to their supervisors and/or managers and that they are encouraged to do so. This means that supervisors and managers must deal with a complaint appropriately by listening, asking questions and showing empathy.

Having a policy that allows complaints to be made is vital to avoiding a bullying application being made by an employee. The Fair Work Commission expects that prior to making an application, the employee has exhausted avenues available to them to have the complaint remedied by their employer. If a business does not have a grievance policy in place, this can open the door to an employee making an application directly to the Commission without first providing the business with the opportunity to address the issue directly.

Train managers and staff

Employers have a legal obligation to provide a safe workplace for their employees. This includes training and educating their employees regarding bullying and cyber bullying and what is and isn’t acceptable behaviour in the workplace.

If a business fails to train its staff on what is and isn’t acceptable, and an employee subsequently bullies another staff member, a business can be held liable for the employee’s actions. For this reason, it is vital that all staff are given training on appropriate behaviour in the workplace and how to deal with bullying and cyber bullying in the workplace. This will also assist in countering any claim that the employer is vicariously liable for an employee’s actions as it demonstrates that the behaviour was not condoned by the business and the business took reasonable steps to train staff about expected behaviour.

Don’t ignore the issue

If a business does become aware that there is an issue between staff members or that comments or posts have been made on social media that are inappropriate, the business has an obligation to take immediate steps to address the issue.

Despite there being a tendency to want to ignore issues that crop up on social media given they can be tricky to handle, usually apply to out of work conduct and can sometimes involve petty disputes, if a business is on notice that there is something wrong and does nothing about it, there is a very strong possibility that the employer could be liable for any damage that is caused to the bullied employee’s health, if a claim were to be brought by them.

[i] https://www.socialmedianews.com.au/social-media-statistics-australia-january-2017/

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December 15

Spreading the Christmas Cheer or the Grinch that Stole Christmas: the Hits and Misses of Workplace Christmases Past

As we come to the end of 2016 and approach Christmas, an exciting time of the working year, as staff are treated to workplace Christmas parties and often time off work over the Christmas and New Year period, some businesses find themselves in tricky situations: everything from misbehaving employees to disputes over annual leave rights and entitlements. However, there are also feel good stories that every now and then restore your faith and make even the most Grinch-worthy of people look forward to Christmas. I take a look at the workplace stories that have made headlines at Christmases past: the good, the bad and the ugly.

Christmas hits

In December 2015, Hillcorp, a Houston based, privately held oil and natural gas exploration company gave each of their 1,381 employees an early Christmas present: a US$100,000 bonus (approx. AU$135,000) as a thank you for an excellent year. And this wasn’t the first time the company was outrageously generous towards its employees. In 2011, after doubling the company in size, staff were able to choose between two Christmas gifts: a $50,000 car or a $35,000 cash bonus.

In 2012, Random House, the publisher responsible for Fifty Shades of Grey, interrupted its corporate Christmas party to announce that all employees (from top editors to warehouse workers) would be receiving $5,000 bonuses after a profitable year (no doubt, in part, due to Fifty Shades).

Even the Australian Taxation Office manages to stay away from raining down on the Christmas cheer, with Christmas parties and gifts to employees generally exempt from fringe benefits tax, provided that less than $300 is spent on each employee. Although expenses incurred in holding a Christmas party are unlikely to be tax deductible, gifts to employees are generally tax deductible.

Swinton Insurance offers a day off for all employees to get their Christmas shopping done, whilst Blurb, an online platform for self publishing books, gifts employees a day off and the funds to pay for a day trip, whether a day on the slopes skiing, at the spa or the movies.

A 9 year old boy used his letter to Santa not to ask for Christmas presents, but to request that his grandfather’s boss give his grandpa the day off. The manager reported to the boy’s grandfather: “I’ve received a phone call from the North Pole this morning asking me to contact Santa on his private cell… I called him, and he was quite concerned that you were planning to work on Christmas Day. Your grandchildren are quite upset about this! I think it would be best if you planned to take the day off and spend it with your family. Work can wait until after Christmas!”

In Peru, communities that live in the Andes use the 25^th of December to participate in a tradition known as “Takanakuy”, which lets residents fight with anyone they like – even their boss. The idea of Takanakuy is that people build up their grievances over the year and save them up for Christmas, where everyone gets into a fight. Each fight begins and ends with a hug.

A recent study has shown that 43% of Canadians would like to hear Christmas music in the workplace. Conversely, in the UK, the government was asked to investigate policies on playing Christmas music in shops after trade unions labelled the practice of over-playing festive music a form of psychological “torture” that staff are forced to endure.

Christmas misses

No article about workplace Christmases would be complete without drunken antics, debauchery and bosses behaving badly.

A UK survey has found that HR professionals are the most badly behaved departments when it comes to the work Christmas party. 72% of HR professionals said they had embarrassed themselves at

the staff party by kissing a co-worker, having sex with a colleague or getting incredibly drunk. The study also showed that 39% of employees admit to having had sex with a colleague at the Christmas party, whilst 50% of workers said they had kissed a co-worker at the annual party.

Employees were asked about the worst end of year gifts they had ever received from their employer. Here are some of the worst:

A coupon to eat a free meal at the nursing home I worked at… as a cook. They didn’t charge for staff meals either
An envelope full of pamphlets on how to lose weight with no letter or explanation
A gas card for 15 bucks from a place that had been closed for nearly six months
A 20% discount voucher for the company’s English courses for kids. I didn’t have children

Meanwhile, a business in Quebec, Canada was forced to defend its decision not to give out its annual Christmas gift, a $50 gift card, all the way to Court. The arbitrator found that the annual gift that had been given to staff in the past had always been characterised as a discretionary bonus and could not constitute a vested right for employees.

In 2001, Merrill Lynch’s New Zealand Hawaiian themed Christmas party ended in tragedy when a 26-year-old investment banker reached under a toilet cubicle and set fire to a colleague’s synthetic grass skirt. The colleague suffered significant burns to 95% of his body and died three days later.

An employee who berated his colleague before finally pushing him fully clothed into a swimming pool during the company’s Christmas party was found to have been fairly dismissed. The Fair Work Commission found that employees who choose to drink at company functions “will also be held responsible for their own actions” and “society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence.”

Conversely, an employee who spent the Christmas party intimidating and sexually harassing colleagues and telling managers to f—k off was unfairly dismissed after the employee was supplied with unlimited free alcohol. The Commission found that the conduct did not occur at the official Christmas party and occurred at a venue after the work sanctioned party had concluded. The Commission also questioned whether a company could require compliance of good behaviour at functions when they provide “unlimited service of free alcohol” to employees.

Carrying on from that, many businesses often question whether to provide employees with free alcohol for fear that it could get them into hot water. Unsurprisingly, in a recent survey, 61% of respondents stated that they wouldn’t attend a work Christmas party where alcohol wasn’t provided and a further 33% of people stated that they would only make an appearance because it was polite to do so. Just 6% of respondents stated that they would definitely attend the Christmas party, despite alcohol not being on offer.

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February 28

When High Performers Behave Badly

Most people will remember the ‘fracas’ that arose early last year when popular television show host, Jeremy Clarkson, allegedly punched a producer of Top Gear after failing to have a hot steak delivered to him after a day of filming. At the time, everyone had an opinion as to what the BBC should do about the situation, with Prime Minister David Cameron even weighing in saying that Clarkson was a “huge success” and that he would be disappointed if Top Gear didn’t continue. Even our own contributor, Helen Carter, weighed in on the matter, albeit with an extremely different opinion than that of the UK Prime Minister.

Ultimately, sense prevailed and the BBC determined that Clarkson’s conduct warranted termination of his employment. Following the investigation, Director General of the BBC, Tony Hall stated:

“For me a line has been crossed. There cannot be one rule for one and one rule for another dictated by either rank, or public relations and commercial considerations.”

This is a statement which may seem an absurd concept for some managers when issues relating to high performers arise. Why would a manager want to take disciplinary action against an employee who may be largely contributing to the success of the business, especially if that disciplinary action is likely to result in their termination? After all, Clarkson’s sacking was followed by James May and Richard Hammond’s decision not to renew their contracts, ultimately resulting in the demise of Top Gear, BBC’s most popular and highest earning program.

We often have clients come to us with allegations of misconduct against high performing employees. Sometimes it might be a senior manager who bullies and harasses more junior staff and other times it can be that the employee feels that they are such an asset to the business that they think they can work (or not work, as the case may be) whatever hours they like. In most circumstances, managers are reluctant to take any action against the employee for fear that they will ‘rock the boat’ and lose out on the clients or money that the employee brings to the business.

However, what managers often forget to consider is the impact that the behaviour is having on the rest of the organisation. Whilst you and your management team might be willing to put up with bad behaviour, other employees may not. Allowing a high performer to continue their unsatisfactory conduct can have widespread consequences for a business, including:

Adverse affect on culture within the business
Acceptance from other staff that the behaviour or conduct is acceptable
Belief that if another employee exhibits unsatisfactory conduct, no action will be taken against them
Risk of losing other employees as a result of their resignation
Negative impact on workers’ health and safety
Risk of employees becoming disengaged and withdrawn from their work
Potential legal proceedings being made against the business including bullying claims

Whilst taking disciplinary action against an employee need not always be termination of their employment, it should be made clear to all employees that they will be expected to comply with high standards and behave appropriately, regardless of their success or monetary contribution to the business. This can be in the form of coaching and counselling, performance improvement plans, training, demotion or warnings.

Unfortunately, many managers will be on notice for some time that their high performers are behaving badly prior to taking action. By this time, the issue may have spiralled out of control and effected the business on such a widespread scale to make the only viable option termination of the employee’s employment.

Taking swift action when an employee starts displaying inappropriate behaviour or attitude is far more likely to successfully reform the employee than sitting back and waiting until someone else complains about their conduct. This means that management are not then put in a difficult position of having to terminate the employment of an employee who contributes greatly to the success of the business.

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