Employment disputes in the workplace cost time and money, with the fear of tribunal often acting as a significant barrier for businesses, particularly SMEs.
As an employment barrister I have seen first-hand the impact that employment tribunals can have, the drawbacks aren’t just monetary (as the costs fall to businesses), but also include stress for all sides.
Clear communication is vital. You need to not only comply with procedure but also explain the steps you are taking and most importantly why. Ensure you have a proper paper trail throughout and be sure to give the employee the opportunity to respond themselves to each of your concerns. The importance of fairness cannot be overstated.
Business need to minimise the risks involved and there are generally five different grounds for dismissal, and here are some “best practice” guidelines for you:
While most businesses, even small SMEs without a dedicated HR department, are aware of the need for disciplinary hearings for gross misconduct dismissals, it is important to have considered the range of sanctions which may be available and to ensure you are consistent in the standards you impose throughout the company. For example you shouldn’t fire someone for an offence where weeks previously in similar circumstances another employee received only a final warning. If you decide to do so you must be able to justify the distinction you see between the two cases and provide evidence to satisfy the tribunal of the reason for the apparent discrepancy. Avoid allegations of personal bias.
Before a disciplinary hearing be sure to undertake a thorough investigation taking into account the different versions of events and be sure to share all of the information gathered with the employee concerned. Written minutes signed by both the employee and employer, as an accurate record of what was said at each meeting is also important, as is giving the employee sufficient time (at least a full week’s notice) to prepare for the disciplinary hearing.
Although, capability is one of the more common reasons for dismissal, issues involved in this type of dismissal can also be the most frustrating for employers where you are questioning an employee’s competence or ability to do the job. Key to these cases is the need to give the employee an opportunity to improve – no matter how unlikely you think their success may be. Instead, clearly set out where they are falling short – are they too slow or lacking key skills for example – and then decide on fair targets to be met following a 3-6 month review period.
Ill health dismissals also fall under the rubric of capability but may also involve an employee with a disability. Responding to staff sickness needs to be handled sensitively, and as a general guide where an employee has a disability you are expected to make reasonable adjustments to accommodate them. You should be slow to dismiss an individual where the period of ill health is not protracted (eg under three months), and where an individual suffers from a disability you will need to consider options which would allow them to return to the workplace such as reducing hours or investing in appropriate software to assist them in undertaking tasks. If their health is truly restricting them from performing their job you need to refer to their doctor and an occupational health expert before pursuing dismissal.
Taken into consideration against the other grounds for dismissal, redundancy has the clearest parameters and is the least affected by individual circumstance. In all cases where you pursue redundancy you need to demonstrate that the employee’s job will no longer exist, for example if your company no longer has a requirement for someone (or such a large number of people) to carry out the function they undertake. Fair selection criteria must also be met when selecting the individual for redundancy, and the employee must be consulted about these reasons for their selection. In the event of a genuine redundancy, employees must also be considered for redeployment if possible. This may involve a trial period and without losing their right to redundancy pay.
Despite the best efforts of those involved, employment tribunals are a business reality and when faced with a claim it is best to take them seriously from the outset rather than burying your head in the sand or thinking it will go away because there is no substance to the claim. It is also critical to file your response to the claim within the 28-day timeframe, as failure to do so will often result in a default judgment in the employee’s favour. And when it comes to preparing your case this is where your earlier due diligence will reap dividends as a record of your actions. Establishing that correct procedure and clear communication took place avoids ‘your word against theirs’ arguments.
Ultimately the law is there to protect both employee and employer, but with tribunal costs falling on businesses, and in light of recent research from the Legal Services Board revealing that more than half of UK small businesses are handling their own disputes to avoid high solicitor fees, companies need to be aware of the options available to them. Many companies are unaware that it may be cost effective to instruct a barrister directly, where they have the capacity to do some of the basic preparation themselves.
Susan Belgrave – myBarrister
Employment Law Specialist
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