To bring someone’s employment to an end, considering the accompanying costs and problems for both employee and employer, is not a decision to be taken lightly. Peter Done, Managing Director of Peninsula, the UK’s largest employment law consultancy, explains how to best keep your business out of court. How many employers are aware that there are over 75 rights which an employee can exercise which could result in the employer being taken to tribunal? That’s a pretty scary figure for any boss particularly when you consider that the law lays down only five potentially fair reasons for dismissal.
- capability (including qualifications, etc., and health)
- redundancy (yes, redundancy is a dismissal)
- a legal prohibition
- a legal ban
The fact is the majority of cases lost at employment tribunal are because the employer involved failed to follow a fair procedure to sack the individual, not because the individual did not deserve to be fired. So how can you ensure you don’t fall into this trap? Tribunals are won or at least avoided by having clear rules and procedures in the workplace, known and understood by everyone so the key is to have comprehensive and well-defined employment. You need to make sure all your employees have a contract of employment statement, supported by a handbook, to define terms and conditions of employment. Get them to sign for it, to prove you have taken the necessary steps to outline what is expected of them. These rules and procedures must be enforced continuously and without exception unless it can be justified for an objective reason. Already you’ll be on a much firmer legal footing should a dismissal arise. If you are facing a dismissal it is wise not to reach a decision there and then but to think about it at least overnight, particularly if this is the last stage in the procedure. Then, if you do reach that point of no return, there are a number of important steps to follow to avoid a trip to tribunal. When it comes to dismissal, the plan of action you should adopt depends on why you are firing that employee but whatever the reason the use of correct procedure will result in a more efficient resolution of the matter and will avoid unfair dismissal claims. Take ‘misconduct or poor performance’ for example. There are 10 vital actions for a ‘fair’ dismissal: (NB: When dealing with potentially gross misconduct issues after any immediate investigation, the individual must be suspended from working) Investigate – it is vital make sure that you have proof of the reasons for dismissal and are not simply acting on hearsay or second hand evidence. Be objective and compare both sides of the story Give advanced warning of the disciplinary hearing – don’t just spring it as a surprise on the party or parties involved. Don’t make them feel unduly stressed and pressurised by the whole affair Give the employee a copy of any relevant evidence in advance – again any party involved must be privy to what they are being dismissed for and why. Remind the employee of the right to representation – while you may have your management team, and legal advice to back you up, your employee is unlikely to have such support. They should be aware that they are entitled to representation. Hold the disciplinary hearing – when you’ve completed these first four steps then you’re ready to go ahead. Give genuine consideration to employee response – don’t just dismiss what they have got to say out of hand, listen to their side of the story and consider their argument carefully Make a decision only after employee responds to allegations – don’t just come out with a decision even if the case is cut and dried otherwise the employee’s unlikely to feel they’ve been given a fair hearing Inform employee of right to appeal – let them know this is not the end of the matter. Better to tell them now than get a nasty comeback months later. Retain notes and other documents – obvious really but anything that backs up your case for dismissal and outlines the procedure you went through is only going to help you should a tribunal occur.
Finally bear in mind none of this will guarantee a dismissed employee won’t decide to take you to a tribunal but if you can have a strong policy and a strict procedure, you’ll spare yourself a lot of stress, and just as importantly cash, once you get there.