The dos and don’ts of dismissals
Since July 2017, Employment Tribunal fees have been abolished, meaning unhappy employees can take their employer to Tribunal without paying a fee to do it.
It’s clear that employees have heard this too, because in March this year the government published a report detailing the Tribunal statistics between September and December 2017 and cited that there were 10,812 cases. Compared to the same period in 2016 (when Tribunal fees still had to be paid) when there were only 5,702 cases. That’s an increase of 89.6%!
With the removal of Tribunal fees comes a much greater risk for employers to be faced with Tribunal claims, and with discrimination and dismissal-related claims on the rise, it’s imperative that employers understand the basic dos and don’ts of dismissing staff.
The HR experts at Workplace Law have highlighted some of the critical ones below:
- Assess each specific situation objectively – just because the situation is similar to a past one, does not mean that it is the same! Each situation should be considered on the basis of:
Check their employment contract – do you have a contractual procedure that you have to follow, regardless of how long the employee has been with you? Or can you shorten the process, due to the individual’s length of service? Know the minimum steps you have to take.
Check their length of service – if the employee is not suited to the role, dismissing them in their probationary period or with less than two years’ service is less risky as they cannot claim unfair dismissal. However, note the employee can claim discrimination or automatic unfair dismissal for specific reasons so it’s important to keep notes (more on that later).
Follow your company procedures – regardless of whether or not your disciplinary / capability / redundancy procedures are contractual, not following your own policy will leave a big black mark against you if you end up at Tribunal! The judge will question what you can follow, if not your own processes!
Take notes – in any meetings relating to the issue, take notes of what was discussed, with whom, when, and any agreements. You will use these notes in subsequent disciplinary/dismissal meetings as evidence, and they will be useful evidence if you end up at Tribunal too.
Think about who does what in the process – Tribunals will expect different people to carry out different stages in a dismissal procedure – an investigator; a dismissal manager; an appeal manager (usually more senior than the dismissal manager). Knowing at the outset who will carry out each role will help your process remain objective.
Take the time to conduct a proper investigation. The first impression isn’t always the right one, and you do not want to end up in a disciplinary hearing without all the proper information – embarrassing!
Make sure you send all relevant information to the employee for the formal meeting – this should include:
- The seriousness of the alleged offence – is this misconduct (a little bit serious); serious misconduct, or gross misconduct (the most serious issues)?
- The individual involved – what are their specific circumstances? Is there a clean disciplinary record or previous warnings on file (your processes should be compliant with GDPR); have they recently moved into a new post; is there a disability/health condition involved?
- Who else is involved; has there always been an issue; has something changed?
Get the employee to sign any notes of the meeting to demonstrate it is a fair and accurate account of the discussion that was had.
Make sure you have a fair reason to dismiss – if that is the outcome of the meeting. There are five potentially fair reasons for dismissal (conduct, capability, redundancy, some other substantial reason, legal reason) – be clear on how you are exiting someone from your business. If you don’t know, a Tribunal will be sure to ask!
Be reasonable in your approach – this means consistently treating all staff the same and considering all the evidence available to reach your ‘reasonable belief’ that dismissal is the right outcome.
Give the right of appeal – regardless of the reasons for dismissal, always give the written right of appeal and follow the process if the appeal is made.
- The formal reasons for the meeting – disciplinary, performance management, absence management, redundancy, etc.
- The right to be accompanied at the meeting by a work colleague or TU representative.
- All relevant information that you will refer to in the meeting – the employee needs this to prepare their case for the meeting.
- Dress up performance or personality issues as redundancy situations – if you need someone in that job it is not redundancy, and using this as a way to exit someone is not advisable. This could definitely come back to bite you.
- Forget to take notes – even when someone has fewer than two years, you still need to evidence what you did and why. Discrimination claims do not need any length of service, and remember, there are no fees to putting a claim anymore.
- Be thrown by an employee going off sick with stress / putting in a grievance / threatening to resign – people react in all sorts of ways when they feel they’re being pushed into a corner. You have fair processes for each of these situations, so you may need to ‘put on hold’ the dismissal process to carry out the grievance / sickness processes, but you go back to the disciplinary in the end.
- Forget to take advice – employee relations is a minefield so take advice from your HR team.
Finally, don’t forget to plan your exit from the meeting room – just joking!