So is it worth employers having such rules if they can still be challenged?
The short answer is yes. Employers must make clear to employees what conduct is, and is not, acceptable both in the workplace and, if relevant, outside of it. If employees are not aware of the rules and employers take action taken to enforce them, employees are likely to bring claims. Companies usually make staff aware of the rules in employee policies and procedures, often focused on disciplinary rules or technology use. However, employers must do more than simply have such policies in place if they are going to take action against employees who breach them. To reduce the risk of claims, employers must ensure that they enforce such policies consistently.
Even then, employees may still bring claims if they are dismissed for what they perceive to be trivial infringements of petty rules. Tribunals then have to decide whether the decision to dismiss was reasonable in the circumstances. What counts as reasonable will depend on a number of factors, and not just what the rules say.
For example, an employer must still investigate the facts, even if an employee has acted in breach of the rules, and consider the seriousness of the particular offence. So the dismissal of a staff member with 12 years’ service for a one-off breach of a no-smoking policy may be reasonable if the employee worked in a factory using highly flammable materials, and had thereby put the employer’s business and property in danger, not to mention the lives of colleagues. On the other hand, dismissing a long-serving employee with an exemplary record for fighting when provoked may be unreasonable, even if fighting is cited as an example of gross misconduct in the employer’s disciplinary policy.
So employers should have rules, but need to recognise that they are not hard and fast. Companies must always consider the effect of applying those rules in each case and decide on whether the net benefit is worth this level of management.