As an employer - you can do anything

In this provocative particle by Managing Partner, Kevin Basnett, we address the difference between unlawful and illegal actions, question why sometimes being unlawful is necessary and separates good business from great businesses and how Goughs Solicitors can support you in becoming one of the greats.

By Kevin Basnett, 11th February 2021

We are often asked, particularly by employees when they perceive some injustice “can my employer do that?”  Often this question is raised after the event which of course provides its own answer to the question raised. 

Our usual response is that the employer can do anything they like.  We still live in a democracy.  The question the employee really needs to ask is “what can I do about it?”. 

Unlawful vs illegal action in the workplace

Many things happen in the workplace that are often unlawful, sometimes illegal and they often go unnoticed or unactioned day by day, month by month and year by year.  It is the reality of how the world works.  Often, either wittingly or unwittingly, the employee is complicit or acquiescent in the unlawful or the illegal action.  Sometimes there is mutual benefit to both parties.

The basic difference between acting unlawfully and acting illegally is that unlawful action usually gives the ‘victim’ individual rights or a remedy such as compensation. Illegal action is normally a criminal act which opens the individual or organisation up to some sort of state intervention e.g a criminal prosecution or regulatory sanction.

As the employer, what are you trying to achieve?

Now let us look at that situation from the employer’s viewpoint.  Often employers who are proposing a course of action, and sometimes after they have taken the action, ask us whether they can do it.  Sometimes if they have already taken the action, they may have acted unlawfully and in rare cases illegally.  By the time we get the enquiry it is too late. The unlawful act may already have taken place and then it is a question of what, if anything is the employee doing or likely to do about asserting their rights or remedies.  We may end up dealing with the unlawful act e.g. defending an unfair dismissal or discrimination claim. 

When the question is asked by the employer “can I do that?” before taking, action again (as with the employee) the answer is ’yes, you can do anything you like’. But a much better question (and one we always ask our clients) is “what do you want to achieve?”

That is a much more powerful, interesting and constructive question.  Once we ask that question, we are looking much further forward than the here and now. We have moved from the simplistic binary “yes / no” to having a decent holistic discussion about developing and improving the employer’s business. We’ve gone from closed to open questions which we all know can be much more constructive.

There are many ways of achieving our aims within a business and the best businesses are imaginative and really explore all their possible options.  Dare we say it, some of those options may even be unlawful but that is a choice for the business and those in it, not the lawyer advising them. Often, we may be acting unlawfully (often unwittingly) and the business runs perfectly well, and no-one feels harmed or wishes to assert their rights or do anything about it. In that sense there is nothing ‘wrong’ in doing something unlawful. It is just the way the world works. Even the Government, our law maker, acts unlawfully (mistakenly or otherwise) and sometimes individuals and organisations do something about it; sometimes not. Judicial review is the usual remedy.  The best businesses will understand and even demand that they do not want yes/no answers. They will want guidance on the wide range of options in answer to the question ‘what do they want to achieve?’.                                                                                

Moving from being a ‘good business’, to a ‘great business’

Developmental and progressive businesses will explore all the options with their lawyers and then work out what is best for them in moving their business forward. It won’t be yes/ no which is effectively stop/ go. It will be a whole holistic portfolio of options and avenues to explore and scenarios to play out. Then we can get into a discussion. If we go that way what are they (often the employees) likely to do? What are the likely outcomes? Are they good? Are they what we want to achieve? Are they good for our people? Are they good for our business? Then they can make the right judgements that suit their business.

In answering the question “what are the likely consequences?” ---this is where the experienced lawyer comes in. They will have seen thousands of scenarios and been to many Employment Tribunals or perhaps even help run a business themselves.  They will know what the most likely outcomes are going to be or help the employer to make that assessment. Opportunity, outcome and risk can be weighed up to agree a route with which the employer is comfortable.

Obviously, it helps to know the employer client, their culture, their appetite for risk, opportunity, innovation and their level of ambition and drive to move the business forward.

Some businesses are content to simply sit in the binary world of “yes / no” - ‘stop / go’. But those that want to get on will explore all the options with their lawyers so that they can take those steps that others may put off. That can provide massive competitive advantage.

In dealing with employment issues, just like any other business issue, ‘what do we want to achieve?’ is a great question. Then it’s all about information, experience, advice, and judgement. Armed with that an employer can do anything they like. They can achieve their aims and do it well.

Where do you go from here?

If this article provoked thought and foresight, please get it touch. We’d love to hear from you and have a discussion about your business, your future plans and how you want to get there. Challenging business ideas and moving from being a good business to a great business is never easy, but we are here for you. Email to arrange a conversation today.