What are the legal risks of imposing ‘unusual’ punishments?

Companies looking to take a more creative approach in imposing punishments in the workplace have a few things to consider, according to an employment law expert

What are the legal risks of imposing ‘unusual’ punishments?
Chinese companies were recently in the news for imposing rather ‘unusual’ forms of punishment in the workplace.

Punishments ranged from the absurd (being fined for not commenting on their boss’ social media feed) to the gross (workers being forced to eat live worms when they were unable to meet targets).

Another company in Australia was in the news for forcing male employees to mimic a cock fight when they were also unable to meet targets.

As extreme as these examples may be, it does shed light on the idea that just as companies are getting creative in their rewards and recognition programmes, so too are they with their punishment strategies.

“In our view, if a company intends to impose unusual forms of punishment for ‘motivation’, it can consider setting out such unusual forms of punishment in the contract,” said Benjamin Gaw, director of the employment department at Drew & Napier LLC.

“In the event that the company does impose such unusual forms of punishment, it can argue that the employee has been made aware of such punishments and therefore cannot challenge the imposition of such unusual punishments.”

He does caution that such punishments are still subject to the application of other laws such as harassment.

“However, even if an employee has been informed by the company that it employs some unusual forms of punishment for ‘motivation’, it does not mean that the employee has no remedies in the event that the company does carry out unusual forms of punishment,” he said.

“Such unusual punishments would still be subject to other laws, such as the laws against harassment or assault.”

Gaw advises HR to think very carefully about the types of disciplinary action they may want to impose in the workplace and stick to more common forms of punishment such as the issuance of warning letters, suspension from work or a demotion. 

“The level and type of punishment must be proportionate to the breach of the employee, and companies should ensure that thorough and fair investigations be carried out before imposing any form of punishment,” he said.
 
“It would generally be unusual to impose any form of punishment which is physical in nature, or which is extremely humiliating.”

“HR professionals should therefore think through very carefully over the form of disciplinary actions, and it is best to avoid unusual forms of punishment, as there is a strong possibility that such punishments may be challenged as a form of harassment or assault.”

Related stories:

Chinese employees made to eat live worms as punishment

Should managers push employees to do more? 

Chinese workers fined for 'not commenting on boss's social media'

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