Intelligence alone is not nearly enough when it comes to acting wisely."1 I was reminded of these words from 'Crime and Punishment' when I was recently asked to review a case of termination. A highly intelligent management team had ratified the decision to dismiss an employee for what seemed an open and shut case of transgressing the organization’s values. While I am not at liberty to reveal the details of the case, it turned out that proceeding with the termination would not just have been of questionable fairness, it would have been at variance with the sparkling and well-deserved image of being open and humane that the organization had spent years creating. That such very smart and honest people could not anticipate the consequences of an over-hasty exit prompted me to talk to several HR professionals and line managers on the subject. One of them, who had seen me in action for a large part of my career, observed that, for all my reputation as a no-nonsense disciplinarian, I had, on more than one occasion, avoided awarding severe punishments (like dismissals). I thought I owed it to her and to other HR colleagues to explain what were the circumstances when I thought it wiser to step back from the harshest penalties. My reasoning on the subject may well be at variance with some formal principles of jurisprudence but since it has helped me think through many such cases that have come up during the decades I have practiced as an HR professional, I feel it could also be useful to the readers of this column.
Obviously, I will not be dealing with all types of terminations. For instance, handshakes – regardless of their metallic composition – triggered by poor individual performance (hopefully after sufficient opportunities for improvement were given) will be out of the remit of this column. So also, will 'downsizings' or group redundancies (presumably only undertaken as a last resort2). Rather, my focus will be on code of conduct transgressions and other infringements of the company’s rule book that are considered serious enough to merit capital sentencing i.e. terminations. There can, of course, be misconduct that is so egregious that even a dismissal is not sufficient and the person needs to be pursued in courts and elsewhere but clearly such individuals are far beyond the mitigating circumstances we are dealing with here.
What first requires checking is whether the person infringed an existing and stated rule of which s/he was aware
Measures of mitigation
What first requires checking is whether the person infringed an existing and stated rule of which s/he was aware. The fundamental legal principle "Nulla poena sine lege" (Translation: No punishment without a law) applies equally to employee misdemeanours and their disciplinary consequences, thus precluding some vague standard of behaviour in the imagination of the CEO or CHRO from being the basis of an employee being found culpable. Fairness also demands "Nulla poena sine lege praevia": the law or rule should have been previously existing and was not concocted just to nail an individual.
Even when there are serious transgressions, we need to examine the circumstances and triggers around the events to determine the varying degrees of guilt and the consequential stringency of the punishments they entail. Which mitigating arguments should we admit and which should we dismiss out of hand? The answer is simple to conceptualize though its application demands a degree of mature judgement that is difficult to acquire without years of application. There are, in my opinion, three considerations that can help us assess the guilt-worthiness of an act in the corporate context. These are:
- the Intentionality,
- the Interest and
- the Impact
associated with the action. While my explanation of each of these necessarily veers to the extremes, obviously there are gradations at every point of the continuum in between.
Perhaps the most obvious mitigator of guilt is whether the action was consciously intended by the perpetrator. We do not blame someone as much for a slip that has proven costly for the company as we do if the person committed it deliberately. Frequently, however, even if the initial act of commission or omission was a genuine mistake, the effort to cover it up is an intended deception that brings higher culpability than the original error. Also, oversights should not be judged to be on par with intended acts simply because the agent had proclivities (that led to the action) but did nothing to check them. I, for one, find it difficult to hold Oedipus morally blameworthy for invading the personal space of his father and getting over-affectionate with his mother (both unknowingly) simply because he was temperamentally choleric as well as arrogant and hadn’t curbed those tendencies over the years.
Fairness also demands "Nulla poena sine lege praevia": the law or rule should have been previously existing and was not concocted just to nail an individual
Slightly more counterintuitive is the idea that a person should be held less culpable if the action was committed disinterestedly, for altruistic reasons or for a worthwhile cause, than if it was done for personal aggrandizement or nepotistic gains. Would we not think worse of Jean Valjean if, instead of breaking a baker’s window to steal bread for feeding his widowed sister and her seven starving children3, he had broken a jeweler’s window because that was his way of supporting his own lavish lifestyle? Of course, the disinterest, and hence exculpability, would have been even higher had there been greater degrees of separation between him and the beneficiaries. But the Valjean case illustrates another aspect of interest which has a vital bearing on our evaluation of the guilt associated with an act. It arises from the direness of the need the action serves. In the illustrative instance, we would be less inclined to excuse Jean Valjean if his theft were of toys for his affluent sister’s children. By the same token, the transgression an employee commits out of fear, for saving her or his skin, is less condemnable than the same action taken for personal enrichment or competitive malice. It is for this reason that cases of proven sexual harassment or major fraud are generally beyond the pale as far as mitigation is concerned.
Perhaps the most controversial suggestion, at least to good deontological moral philosophers if not to good practicing HR managers, is to moderate the evaluation of guilt depending on the consequences the action has caused. My arguments about Intentionality and Interest in the previous two paragraphs are in consonance with the Kantian view that the motivation behind an act matters hugely. Where we part ways is in my belief that motivation is not all that matters – the results from the action should also have a bearing on our judgement. Fortunately, I am not alone in challenging the Königsberg clock and will take the support of the philosopher Thomas Nagel to buttress my side of the argument: "If someone has had too much to drink and his car swerves onto the sidewalk, he can count himself morally lucky if there are no pedestrians in its path. If there were, he would be to blame for their deaths, and would probably be prosecuted for manslaughter. But if he hurts no one, although his recklessness is exactly the same, he is guilty of a far less serious legal offence and will certainly reproach himself and be reproached by others far less severely." Most CHROs intuitively turn Nelsonic eyes to infringements by their senior colleagues and the CEO when the consequences are non-existent or negligible and I have little problem with that. Where I pick a quarrel with them is when they turn into deontological demons and throw the rule book and the kitchen sink at more junior employees in similar circumstances. As Publilius Syrus wrote two millennia ago, "The greater a man is in power above others, the more he ought to excel them in virtue."
These three mitigators have a multiplicative relationship in determining whether an individual is to be exonerated or dealt with more leniently. For instance, however great the cost to the company, if the employee made a genuine mistake, the severity of the offence would stand greatly reduced in my book.
Even when there are serious transgressions, we need to examine the circumstances and triggers around the events to determine the varying degrees of guilt and the consequential stringency of the punishments they entail
Better than his crown
What if the measures of mitigation listed above do not fully exonerate the culprit? Is s/he doomed to dismissal? Possibly, but not yet definitely. After the courts of the land have established someone’s guilt, many countries around the world (including India) permit the President or similar Head of State to pardon the person. Which is why perhaps the most moving plea for clemency ever penned says this about mercy:
‘T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
...mercy is above this sceptred sway;
It is enthronèd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.6
The power to pardon is one all CEOs should guard jealously and use judiciously. I will not presume to advise them on the considerations they should apply but I will point out that forgiveness doesn’t necessarily diminish a leader.7 Frequently, by the time a case reaches a CEO’s desk, it is framed as an accusation by a senior manager against a far more junior employee. At such times the CEO could do worse than recall the words of that gifted leader of men, Napoleon Buonaparte: "I am here to do justice to all, and the weaker party is especially entitled to my protection".8
Several progressive organizations have gone beyond having a well-established process for making internal appeals to having an independent external ombudsperson. This ensures a degree of objectivity, particularly when the employees charged are at the CXO level or if the CEO has been responsible for taking the initial punitive decision for any other reason.
Ombudspersons (and CEOs for that matter) do not have some blinding insight about justice that is denied to HR practitioners – though they do usually have much more experience in dealing with punitive action and its consequences. They are, therefore, likely to apply factors of mitigation or condemnation similar to the ones we considered in the previous section. What should distinguish their application of mind is the possibility of triggering clemency at a lower threshold of the mitigating factor provided they can intuit a spark of genuine remorse coupled with the possibility of rehabilitation. It goes without saying that declining to award maximal punishment does not mean the perpetrator is let off scot free – just that the severity of the punishment is reduced.
Judging like Jeffries
George Jeffreys is remembered today as 'the Hanging Judge', for his severity and bias. We shan’t enter the debate on whether he deserved that characterization or not9, but clearly it is a reputation some corporate CEOs do not mind acquiring. Assuming there are not some basic psychopathic tendencies at work (recent research shows "a weak positive correlation for psychopathic tendencies and leadership emergence, a weak negative association for psychopathic tendencies and leadership effectiveness, and a moderate negative correlation for psychopathic tendencies and transformational leadership"10) their logic presumably rests on some version of Niccolò Machiavelli’s advice that "It is better to be feared than loved, if you cannot be both". There are at least two important reasons CHROs should stand up for reasoned reviews of culpability and proportionate punishments even when pressured in the direction of summary sentencing by a baying boss or business partner.
Organizations where severe punishments are the inevitable consequence of transgressions, develop climates of fear11 and political manipulation. Neither of these is conducive to innovation and openness that are the avowed cultural pillars most corporations espouse.12 Moreover, making the punishment a virtually programmed consequence of the act reduces the role of human agency13 in the judgement and dehumanizes the image of the company and its management in the eyes of all employees – present and prospective.#
Several progressive organizations have gone beyond having a well-established process for making internal appeals to having an independent external ombudsperson. This ensures a degree of objectivity
Generally, organizations that do not mitigate punishments based on criteria of the kind we have been reviewing tend to use the upper scale of available penalties for each offence. This leads quite naturally to huge amounts of effort and subterfuge being expended by employees on covering up even minor lapses. Not only does this preclude others learning from the misstep, it prompts even worse transgressions being committed in the process of hiding the first one. As Confucius pointed out, it is cover-ups that convert mistakes into crimes. The cultural consequences of such incentives for dishonesty are obvious.
When fairness demands firmness
If any readers have been led to believe this to be an argument against all severe punishment in the corporate setting, I must hasten to disabuse them. Strong as the arguments are against punishments within society as a whole14, I believe it would be Utopian in the extreme to wish them away. Matters are no different in the corporate world and I have pointed out in one of my earlier columns what can go wrong when certain types of organizations are culturally averse to meting out terminations.15 In another column I have stressed why a discreet parting of ways is not a harsh enough penalty when the transgression is extreme and the punishment needs to be exemplary.16 There are also many occasions where retaining someone whose record is besmirched is not doing any favours to that person. A totally fresh start in another setting is a far better break for that individual too. What I have attempted to do here is provide some don’ts and dos before awarding severe punishments. Let me summarize.
Punishments should not be awarded heedlessly or mechanically, in blind pursuit of "Fiat justitia, pereat mundus" (Translation: Let justice be done, though the world perish). Much of this column has been devoted to the kind of mitigating factors that should give us pause in our pursuit of punishment. And when we do go ahead, we must visualize the impact the punishment will have on the individual as well as on the others in the organization.
Rightly or wrongly, many employees see HR taking a ghoulish relish in dispensing punishments. It is an image (hopefully unjustified) that we should aim to shed. To continue Portia’s plea: "In the course of justice, none of us should see salvation"5. As HR professionals, we claim our dealings with people both require and reward us with a higher empathetic sensitivity than other managers. But this empathy can’t only display itself while celebrating successes. It should also transmit to us some part of the anguish and grief we cause to fellow employees when we award them punishments – however justified they may be.
Each punishment is also an opportunity for introspection. What policies, leadership and culture, which we as HR leaders had a hand in creating or continuing, contributed to the misdemeanor – if ever so indirectly? Coming even closer home, can we really put our hands to our hearts and claim that, if all our own undiscovered errors and missteps were brought to light, we would be less deserving of punishment than the person we are 'sentencing'? If not, let us think again before signing off on that order to cast stones at the sinner.17
- Fyodor Dostoyevsky, Crime and Punishment, Penguin Classics, 2003.
- Visty Banaji, People are not beans, People Matters, 13th July 2016.
- Victor Hugo, Les Misérables, Penguin Classics, 1982.
- Immanuel Kant, Foundations of the Metaphysics of Morals, Pearson, 1989.
- Thomas Nagel, Mortal Questions, Cambridge University Press, 2012.
- William Shakespeare, The Merchant Of Venice, Arden Shakespeare, 2013.
- Rosabeth Moss Kanter, Great Leaders Know When to Forgive, Harvard Business Review, 26 February, 2013.
- Duchesse D'Abrantes, At the Court of Napoleon, Doubleday, 1989.
- G W Keeton, Lord Chancellor Jeffreys and the Stuart cause, Macdonald; 1965.
- Karen Landay, Peter D Harms and Marcus Crede, Shall We Serve the Dark Lords? A Meta-Analytic Review of Psychopathy and Leadership, Journal of Applied Psychology, August 2018.
- Liz Ryan, Ten Unmistakable Signs Of A Fear-Based Workplace, Forbes, 7 March 2017.
- Neal M Ashkanasy and Gavin Nicholson, Climate of Fear in Organisational Settings: Construct Definition, Measurement and a Test of Theory, Australian Journal of Psychology, 55(1), 24-29 April 2003.
- Nick Ismail, Artificial intelligence: increasing transparency while keeping humans in the loop, Information Age, 12 December 2016.
- David Boonin, The Problem of Punishment, Cambridge University Press, 2008.
- Visty Banaji, How non-profit orgs can get the best out of their people, People Matters, 19th February 2019.
- Visty Banaji, Effective ways to quickly end sexual harassment in corporates, People Matters, 18th December 2018.
- John 8:7, The Holy Bible, Random House, 199