Recently in the US, the boss of a mortgage firm terminated the employment of 900 members of staff over a video call, with little consideration for their wellbeing.Continue reading
Did you know that since the fees for tribunals were waived in July 2017, there has been a 90% increase in employment tribunal claims?
To protect yourself from risk of being taken to court for unfair dismissal, it’s important to know the difference between ‘fair’ and ‘unfair’ dismissal, as well as ‘wrongful’ and ‘constructive’ dismissal.
Do you know the differences? What about the relevant laws, and codes of practice? If you’re unsure of any of these and don’t want to risk paying thousands of pounds in compensation to employees taking you to tribunal, this blog will help.
What is Fair?
When you need to carry out a dismissal, it’s important to ensure that it’s fair on the employee not only for them, but also for the reputation and integrity of your organisation.
One of the first things you, as an employer, must understand is the differences between ‘fair’ and ‘unfair’ dismissals. ‘Unfair’ dismissal is usually where an employee was dismissed, for example, because of pregnancy; a family situation such as time off for dependents; or in contravention of the Working Times Regulations. These are just three examples of many that could end with you in a tribunal court if they weren’t handled correctly.
For a dismissal to be deemed ‘fair’ as stated under Section 98 of the Employment Rights Act 1996, it would need to be carried out for one of these five reasons:
- Capability or performance
- Contravention of a statutory duty or restriction
- “Some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held.” (This is a direct quote from the Employment Rights Act 1996.)
Let’s delve into each point a little further:
- Capability or performance
An employee can be dismissed if:
- They do not have the capabilities to do the job duties they were employed for
- They have the capabilities, but are unwilling to do the job properly
However, you should still have a process of looking further into each point to find out more about their situation, especially as poor performance could be down to health issues, or because of stress. Read more about that here.
When there’s clear evidence of misconduct, such as persistent lateness or unauthorised absence from work, action should be taken to try to understand why the misconduct is happening, and to give your staff member a chance to improve. For more information on this, read my blog on Managing Capability and Conduct Issues Effectively to Avoid Dismissal.
If gross misconduct is evident, this must also be handled carefully and within the legal parameters of employment law. For more on this, click here.
Making people redundant is always difficult, but may be necessary if the business is changing in some way, moving location, or even closing down. To genuinely make someone redundant, you must demonstrate that the employee’s job will no longer exist. Of course, the employee has certain rights throughout the redundancy process, such as needing time off to look for a new job, and they may be entitled to redundancy pay. Read more on this subject here.
- Contravention of a statutory duty or restriction
One example of this is of employees not having the right to work in the UK anymore, or not having proof of their immigration status. Other examples can include undertaking Trade Union duties, or not providing relevant work evidence to support their employment.
- Some other substantial reason
If none of the above four reasons for dismissal apply, then the phrase “some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held” becomes admissible. Examples include:
- Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
- Dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
- A personality clash between employees makes working together impossible
- Where there are concerns relating to the safeguarding of children or vulnerable adults, but there are no grounds for a misconduct dismissal
I have covered this last point in more detail in other blogs that you can read here.
Even where a dismissal is potentially fair for “some other substantial reason”, it’s important that you follow a fair procedure and act reasonably in dismissing the employee, taking into account all the circumstances.
Being such a minefield, it’s important to get expert help when you need to dismiss someone to reduce the risk of being taken to court.
Before you dismiss any member of staff, for whatever reason, it is best to seek professional HR advice. You can call me on 0118 940 3032 for a confidential chat or click here to email me.
In a recent blog post, I set out the reasons that an employer could dismiss an employee under the ‘dismissal for some other substantial reason’ (SOSR) clause. There, I went into detail about how to manage an awkward situation where a third party – usually an important client – states that they no longer want one of your employees on their site. Click here to read it again, or if you missed it.
In this month’s blog, I’m focusing on the problem of when employees refuse to work with colleagues.
Refusal to Work with Colleagues
In most walks of life, we’re free to choose our friends. But at work, we have little influence on who we work with. Often, there’s no issue – even when employees don’t like each other, they usually tolerate one another. But when a group of employees refuse to continue working with one of their colleagues, what can you do?
Reasons why employees might refuse to work with a colleague include:
- Serious personality clashes
- Discovering their colleague is HIV positive
- An employee becoming ‘socially unacceptable’, e.g. by having objectionable behaviour, or criminal convictions or charges, e.g. child pornography or sexual offences
As soon as you’re informed of a situation, don’t delay! Act early to stop a minor problem escalating into a situation where dismissal is demanded. Investigate what is behind the breakdown in relationships by interviewing and taking statements from all the relevant parties. From that, try to persuade the employees to patch up their differences, taking whatever constructive measures necessary to alleviate the situation. Depending on the breakdown reason, measures may involve allaying concerns or fears, and even arranging an education programme, for example where the objections centre around an employee being HIV positive.
Try not to be easily swayed by employee pressure, particularly if the allegations are based on groundless prejudice, are unreasonable or are a complete overreaction. You may even have to consider disciplining the protesters if their actions amount to bullying or harassment of the employee in question. This may not feel like a palatable option as this could lead to even further disruption of the workforce, but you need to protect your business interests, and widespread disruption is bound to be a threat to profitability and customer relations.
Where employees’ objections are well founded, it may be appropriate for the employee with whom the problem has arisen to be disciplined if the issue is misconduct or offensive behaviour. The fact that you are tackling the issue may be sufficient to calm the situation down and appease your staff.
Employee Pressure to Dismiss
Dismissal from employee pressure should always be a last resort. If all the steps taken to alleviate the situation and improve work relations hasn’t worked, and the breakdown is clearly irreversible, then it may be possible to dismiss the employee on SOSR grounds.
Remember that the reason for dismissal must be substantial. So if disruption amongst the employees is seriously harming your business, then you have no choice but to dismiss. A tribunal will want to see evidence pointing to an ultimatum having been served on the employer by the employees. Often, employees will use the ‘It’s him or us’ pressure tactic, which should be sufficient if the relationship breakdown can be reasonably assessed as irremediable. However, this conclusion can only be reached after you have taken all reasonable steps, short of dismissal, to improve the situation.
If the relationship breakdown only affects two employees, it’s much more difficult to successfully plead SOSR as fair reason for dismissal as this situation is unlikely to be deemed ‘substantial’.
If all your attempts to improve relations are unsuccessful and the reason for dismissal is indeed substantial, an employment tribunal will explore whether the dismissal of the employee was reasonable in all circumstances. The tribunal will consider whether the objections of the workforce were reasonable, or whether they were motivated by malice or blind prejudice, making the dismissal an injustice to the employee. Unfairness to the employee is an essential part of the equation.
The tribunal will also explore your conduct and the procedure you went through to reach the decision to dismiss. Part of that procedure is considering whether the employee can be given alternative work, or be relocated to another workplace, with his or her agreement.
If your staff are pressurising to dismiss an employee who is HIV positive, usually because of fear of infection, you will need to take the necessary action to counteract what is unwarranted prejudice, and to protect the employee from bullying and harassment. Allay groundless fears by educating staff about the transmission of HIV and the fact that it imposes no risk to others from normal work or social contact. Remember that an HIV positive person is automatically deemed to have a disability under the Equality Act 2010. Therefore, you risk a disability discrimination claim and a claim for unfair dismissal if you dismiss an HIV-positive employee from staff pressure. As HIV disproportionately affects gay and bisexual men, you also risk a sexual orientation discrimination claim. It’s essential that you protect the employee from harassment by colleagues, which may involve taking disciplinary action against the employee’s colleagues.
If efforts to consult with staff to allay their fears fail, it may be appropriate to transfer the employee to alternative employment, with his or her agreement, rather than considering dismissal.
Employment Law Update Workshop
Join us at our next Employment Law Update Workshop on 25 October 2018 for just £20 +VAT. Click here to book your place online. Come along and ask all your HR questions!
The whole dismissal process can be a minefield for employers, so it’s important to understand the differences. I wrote about those differences in a recent newsletter, but the term ‘dismissal for some other substantial reason’ (SOSR) needs further clarification.
There is a danger that some employers use SOSR as a convenient way to get rid of unwanted employees. But there really must be a good, reasonable and substantial reason for doing so. You must demonstrate that you followed a fair procedure, because if you didn’t, an employee can successfully claim unfair dismissal.
Under Section 98 of the Employment Rights Act 1996, the potentially fair reasons for dismissal are:
• Contravention of a statutory duty or restriction
• Or, if none of these apply, ‘some other substantial reason (SOSR) of a kind such as to justify the dismissal of an employee holding a position which the employee held’
Examples of dismissals that could be held for SOSR include:
• Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
• The dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
• A dismissal because of a personality clash between employees that makes it impossible for them to work together
• Dismissal of an employee where there are concerns relating to the safeguarding of children or vulnerable adults, but where the employer does not have grounds for a misconduct dismissal
Client Refuses to Have an Individual on Site
Another valid reason for using SOSR is when a client reports that they no longer want one of your staff members back on their site. Naturally, you need to protect your commercial interests and maintain a good business relationship with the client, but you must also balance the employment rights of the employee.
If you were to dismiss the employee without taking any steps to find a solution, or take account of any injustice towards the employee, you run a high risk of a successful unfair dismissal claim against you. But if you have acted reasonably and investigated fully before deciding to dismiss, SOSR can safely be used as a fair reason for dismissal.
What’s the Problem?
Firstly, investigate why the client has objected to the employee to see if the problem could be resolved. If the reason is evidently misconduct at the client’s workplace, then it needs to be dealt with accordingly using your disciplinary procedure. Where the reason is less clear, such as the client disapproving of a particular working practice, the employee could be asked to change their process to match the client’s needs.
When the situation is serious, a tribunal will need to be satisfied that you have taken the appropriate steps to find any scope for resolution. Ensure you have a written record of discussions with the client when trying to resolve the problem; ask them to provide their objections in writing. If you cannot establish the truth of the client’s allegations, or do not agree with their actions, the commercial pressure on you both may still provide sufficient grounds for a fair dismissal on SOSR grounds.
What About the Employee?
If your client is adamant that there can be no satisfactory resolution, and that the employee should not return, it’s important to consider what injustice might be caused to the employee when deciding whether to dismiss. For instance, how long have they worked for you? How satisfactory has that service been? What are their prospects on the labour market? Case law has shown that none of these factors is conclusive, but should all be considered prior to dismissal.
What other alternatives are there rather than dismissal? Could you offer redeployment within your organisation? If it’s large enough, there may be a different type of job that your employee could do.
The Employee’s Contract
Your case will be strengthened if the employee has been warned that the client may intervene to have him or her removed. These days, many commercial contracts include a clause stating that the client may ask the employer to remove any employee whom the client considers unsuitable. It would help to include this in the employee’s contract of employment, as it shows reasonableness when acting on third-party pressure. Your employees should also be informed of the importance of maintaining good working relations with clients during their induction. The induction is also an ideal time to reiterate the client’s right to insist on the removal of employees.
In Part Two of Dismissal for Some Other Substantial Reason: Demystified, I’ll cover the difficult subject of refusal to work with other colleagues. Look out for that one coming soon.
Meanwhile, if you need any further advice on dismissal or any other staff issues, do call me on 0118 940 3032 or click here to email me.
Occasionally you might find yourself faced with a situation where one of your employees is absent from work without explanation and without permission. They simply fail to turn up for work. The absence might be for just a day or two or – in the worst case – you might never see them again. What can you do about it? How should you handle unauthorised absence?
Contacting your Employee
The starting point is for you to try to make contact with you employee by telephone on the first day of unauthorised absence, to find out why they have failed to turn up for work. Logs of all attempts at contact should be kept, whether these are messages left on an answer phone or with relatives or flat mates, or whether there has simply been no answer when the employee’s telephone number is rung. Remember to call landlines as well as mobile numbers, if you have them.
If your attempts to contact your employee are unsuccessful, it is recommended that you contact the employee’s stated emergency contacts – usually parents or siblings, spouse/civil partner or partner.
If nothing has been heard from the employee by the second day of unauthorised absence, you should step up your attempts at contact, by writing to advise the employee that they have failed to attend work on the relevant dates and have not provided any reason for non-attendance. You should cite the previous attempts to contact the employee in your letter, and ask the employee to make contact with you by a set date, to confirm their position. Allowing a couple of days for contact should be sufficient. The employee should also be advised that unauthorised absence without good cause is a serious disciplinary offence, which may, depending on the circumstances, amount to potential gross misconduct.
Some employers state in their letter that the employee’s conduct in failing to attend work implies that they intend to, or have, resigned; if they fail to make contact by the stated deadline, it can be assumed that this is the case and appropriate action can be taken. Do note, however, that for a resignation to be implied by conduct, at the very least you must make enquiries and warn your employee of your intentions.
It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In most cases, the contract of employment does not end until you accept the employee’s breach of contract in failing to attend work, by actually dismissing them. This is because tribunals will generally hold that the withdrawal of labour and the failure to contact the employer are not of themselves enough for a resignation. Rather, the employee must have actually communicated an intention to resign to the employer.
Given that it is likely that a tribunal will hold that an assumed resignation is in fact a dismissal, as the employer, you should incorporate your normal disciplinary procedure into this process. This will involve writing to the employee to invite them to a meeting to discuss the unauthorised absence, setting out the possible consequences of this behaviour. Of course, if the employee has failed to reply to the unauthorised absence letters, it is highly likely that they will fail to turn up for the disciplinary meeting and will not provide any reason as to why they could not attend. This means that the meeting will probably go ahead in the employee’s absence and that they will then be notified of the outcome in writing and given a right of appeal.
In many cases, you’ll be able to make contact with your employee and they return to work. When this happens, you should promptly investigate and ask the employee for a proper explanation at a return to work interview. If there are no acceptable reasons for the absence, the matter should be treated as a conduct issue and dealt with in accordance with your disciplinary procedure. Even if the employee says that they were sick, they will need to explain why no contact was made with you, as required by your company sickness absence reporting procedure. An investigation might well turn up the fact that the sickness absence was not genuine, and there may still be a disciplinary case to answer.
Unauthorised leave can lead to a fair dismissal, especially where a prior warning makes the consequences of the absence quite clear and the absence is for longer than a day or so.
You may become aware in advance that an employee plans to take unauthorised holiday. This is most often connected with holiday requests that you legitimately turn down, but when the employee tells you that they are taking the time off anyway, because a holiday or flight has already been booked.
Where an employee has a holiday request turned down, you should write to them confirming the legal position. Even if you choose not to do this for all declined holiday requests, as a minimum, you should do it if you subsequently find out that an employee plans to take the time off work anyway. The employee may tell you this directly – often in a fit of temper – or you may hear it from another member of staff.
The letter to the employee should state that their holiday request for the relevant dates was declined and set out the reasons why. It should go on to say that, if the employee does still take the time off, not only will they not be paid for it but it will also constitute unauthorised absence. The letter should make it clear that unauthorised absence is a very serious disciplinary offence amounting to potential gross misconduct and that the employee will be at risk of summary dismissal on return from the holiday. You should finish by inviting the employee to reconsider their position in light of the possible consequences.
If the employee ignores the letter and goes on holiday, on their return you should invite them to a formal disciplinary hearing to discuss the matter. Don’t try to hold this meeting in the employee’s absence, given that you already know that they would be unable to attend. Instead, suspend the employee on the day that they return and set up the disciplinary hearing for a few days later. Assuming that a fair disciplinary procedure is followed and that you had legitimate reasons for turning down the employee’s annual leave request, a dismissal on these grounds is likely to be fair.
As with all disciplinary and dismissal issues, make sure that you have a proper process in place and that you follow it to the letter. If you don’t have a procedure for dealing with unauthorised absence or any other staff issues, get in touch and we’ll talk about how we can help you set up the processes that you need.
If you have any questions about how to handle unauthorised absence, contact me straight away by calling 0118 940 3032 or by clicking here to email me.
Can Santa get the sack?
Christmas is coming, the goose is getting fat … but so is Santa! He’s now too big to fit down the chimney; the elves think they have man flu; and Rudolf says the roads are blocked with snow so he can’t get to work!
You might think that Christmas runs smoothly at the North Pole – after all, they have all year to plan it. However, this year there are a few problems for the Head Reindeer (HR) department to sort out.
Father Christmas is too big to fit down the chimney. All year Santa has been relaxing at the North Pole and as a result, his girth has expanded somewhat. The Head Reindeer is worried that he won’t be able to do his job properly – after all, he is supposed to climb down chimneys in order to deliver presents. Can he get the sack for not being able to carry out the work in his job description? If Santa is morbidly obese and can’t carry out his daily tasks, he could be classed as disabled. This means that sacking him because of his girth may be discrimination – something the Head Reindeer would like to avoid!
The elves think they have ‘man flu’. They’re sneezing and coughing and their noses are running, so they’re really like to stay in bed – especially during December when work gets really busy. Are they allowed to take time off sick, when Father Christmas thinks they just have colds? Staff taking time off for sickness usually increases over the winter months, so the Head Reindeer will need to speak to each of the elves and find out what’s actually wrong with them and make sure they have the right evidence to support the reasons for their absence. Keeping in contact with sick staff is always a good idea. After all, how can Christmas carry on without the elves?
Rudolf says the roads are blocked with snow. He says he can’t get to the office because of the weather conditions. He can’t really work from home, although for some staff, it’s worth setting up remote access, so that they can still work, even if they’re not in the office. The Head Reindeer needs to make sure that the Staff Handbook is up to date, to cover issues like bad weather. And he needs to find out how else to get Rudolf to work, if there is snow on the road, or Christmas might have to be cancelled.
With a little bit of forward planning (and perhaps some advice from an expert) the Head Reindeer (HR) manager will be able to make sure that everything goes to plan for a great Christmas. At least he can let all the elves take time off together, once the festive period is over!
On 23 October we’ll running our next Employment Law Update workshop. This half day session is aimed at business owners and managers who need to keep up to speed with the changes, to make sure they stay legal. We’ll go through all the new changes and give you the opportunity to find out how they might affect your business.
There are still some places available, so to join us at Hennerton Golf Club in Wargrave, Berkshire for just £15 +VAT, click here.
Here are a few of the changes we’ll be looking at.
Antenatal rights for fathers and partners
Working fathers will have the choice to take unpaid time off to attend up to two antenatal appointments with a pregnant partner. These rights will be available for employees who are in “qualifying relationships”, which means they:
- are the expected child’s father
- are the pregnant woman’s husband or civil partner
- live with the woman in an enduring family relationship and are not a relative
- are one of a same-sex couple who is to be treated as the child’s parent under the assisted reproduction provisions
- are the potential applicant for a parental order in relation to a child who is expected to be born to a surrogate mother.
From 1 October both employees are permitted to take time off to attend the same appointment. However you may refuse to grant an employee time off where it is “reasonable” to do so. But you must tread carefully as employees can bring a tribunal claim against you for unreasonably refusing time off. You should adopt a clear policy of how such requests will be dealt with and the parameters for refusal.
Employment tribunals must order equal pay audits
Greater sanctions are to come into force to ensure that employers are carrying out equal pay audits. As part of a new tougher regime, employers who are found in breach of equal pay legislation can be ordered by the Employment Tribunals to carry out an equal pay audit and make the results of that audit public. If the Tribunal determines that you have unreasonably failed to comply with its obligations, it can impose a fine of up to £5,000 at each hearing, in order to address your non-compliance.
Reservists better protected against unfair dismissal
To encourage more new recruits to sign up as a reservist of the armed forces, the Government is making signing up more attractive to people who worry that enlisting might cause problems with their job and career. From 1 October 2014, the statutory qualifying period for unfair dismissal will be removed in the case of a dismissal connected with an employee’s membership of the Reserve Forces. However, reservists will still have to prove that it was unfair to dismiss them because of their absences from work – they will not be treated as automatically unfairly dismissed.
The changes will apply to employees whose effective date of termination falls after 1 October 2014. Prior to these changes, reservists were at a considerable disadvantage when pursuing a claim for unfair dismissal as a period of call-up could not count towards the two year qualifying period needed to bring a claim.
The government is also reducing the financial burden on reservists’ employers.Small and medium-sized employers will now be able to claim £500 per month (pro-rated for part-months and part-time employees working fewer than 35 hours per week) from the Ministry of Defence during periods when a reservist employee is absent on military service. Employers will also be able to claim up to £110 a day for additional salary costs incurred in providing cover for the absent reservist.
Increase in national minimum wage
Following the recommendations of the Low Pay Commission the Government has implemented the following increases to the national minimum wage which take effect from 1 October 2014: the standard rate for those aged 21 and above will increase from £6.31 to £6.50 an hour; the rate for those aged 18-20 will increase from £5.03 to £5.13 an hour; and the rate for those above the compulsory school but aged under 18 will increase from £3.72 to £3.79 an hour.
There’s a lot more happening, so to keep ahead of the changes and to find out more about these ones, join us on our workshop on 23 October 2014.
From April 2011 to March 2012 there were a total of 186,300 tribunal cases is the UK. The cost to employers was an average of £3900; the cost to the taxpayer was £1900 for each case. Of this total, 46,300 cases were due to unfair dismissal. 24% of the cases were withdrawn, 42% were settled via Acas, 8% were successful following hearing and 10% unsuccessful following hearing.
Since July 2013 a number of changes have been made including:
Cap on unfair dismissal – there is now a basic award which is based on redundancy; and the compensatory award is now capped at £74,200 or one year’s earnings.
Employment tribunal fees – fees are now charged for issuing and hearing tribunal claims and for various applications made during tribunal proceedings. Level 1 fees for simpler claims are £160 for issue and £230 for hearing. Level 2 fees for more complex claims including unfair dismissal and discrimination are £250 for issue and £950 for hearing.
Early sift stage – during this stage, the pleadings will be reviewed by a judge soon after the Tribunal claim form has been received, with claims or responses being struck out if the judge considers there is no reasonable prospect of success.
In addition, Acas is making pre-conciliation changes from early 2014 and financial penalties are being introduced for employers from 6 April 2014.
So should you settle or should you fight? If this all sounds too complicated for you, or you have any specific questions about changes to employment law, don’t go through it alone! Please get in touch by calling 0118 940 3032 or by emailing email@example.com.