Tag Archives: dismissal

Employment Tribunals Have Changed – What Do You Need to Know?

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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 Of this total, 46,300 cases were due to unfair dismissal. 24% of the cases were withdrawn, 42% were settled via Acas, 8% were successful following hearing and 10% unsuccessful following hearing.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 sueferguson@optionshr.co.uk.

Dealing with Gross Misconduct – How do You do it?

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Gross misconduct is behaviour so bad that it destroys the relationship between you and your employee and it usually results in dismissal. But what exactly can be considered gross misconduct? It’s important to know, so that you can avoid unfair dismissal claims.

Here’s how to identify and manage gross misconduct.

What is gross misconduct?

Gross misconduct is a serious breach of contract and includes any misconduct which, in your opinion, causes serious damage to your business, or irreparably breaks down trust and relationships.

There is no exhaustive list, but it can include theft, physical violence, bullying, damage to property, accessing pornographic sites, damaging your firm’s reputation, inability to work due to alcohol or drugs, breaching health and safety rules, failing to obey instructions, or serious neglect of duty. Repeated minor misconduct, such as being late to work, is not gross misconduct, although it can lead to dismissal after previous unexpired warnings.

Should my staff handbook include examples of gross misconduct?
Include a list of examples of what usually counts as gross misconduct, but state that it is non-exhaustive as you cannot provide for every eventuality. Each case should be looked at individually and consideration should be given to all the circumstances.

What procedure should I go through if someone has committed gross misconduct? When disciplining an employee you should follow your own disciplinary procedure and the Acas Code of Practice. If you don’t follow the Code it may render a dismissal unfair and could increase the amount of compensation an employment tribunal awards against you.

If you believe an employee has committed gross misconduct, you may need to suspend them to allow a full investigation to take place. This won’t be necessary in all cases, but it will usually be appropriate in cases of serious misconduct. If an employee is suspended it should be on full pay.

Carry out a fair and balanced investigation. At the end of it you may decide that no further action is necessary. However, if matters are to be taken further the employee should be invited to a disciplinary hearing where they will be given the opportunity to state their case and respond to the allegations against them. The hearing should then be adjourned for you to make your decision. You should notify the employee of your decision in writing and inform them of their right of appeal.

How can I decide if something counts as gross misconduct or not?  
If you’re unsure, get legal advice. In any case, if an incident is not obviously gross misconduct, it’s always better to go for the lesser sanction than to dismiss someone as such a dismissal may be held unfair. The current maximum compensation for unfair dismissal is £74,200.

If you need any more advice about identifying or dealing with gross misconduct, please do get in touch, to make sure you can avoid and tricky situations.

How Can I Sack Someone Legally?

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This is a question I’ve been asked recently. It’s easy to fire someone, but not so easy to do it without getting into trouble, so here are some tips for sacking staff legally.

1. When you fire an employee, remember the three essential steps

First, invite the employee to a meeting with you. Make sure they realise it’s a disciplinary meeting, not a chat about the weather. Second, let them have their say. Take notes and record how long it lasts so you can prove it wasn’t rushed. Third, ask a senior manager to review your initial decision – you need an impartial opinion. If you fail to follow any of these steps, the dismissal is unfair and could go to a tribunal.

2. Fire employees consistently

Last year, you discovered that someone in your sales department had been colluding with a rival. You gave him a warning. A few months ago, you found out that another salesman was doing the same thing. You sacked her. Watch out – if you behave inconsistently, you won’t have a leg to stand on in court.

3. Take your time and don’t rush into firing anyone

Don’t ambush a member of staff with an allegation and fire them on the spot. Notice of a disciplinary hearing must be given at least 24 hours before the meeting.

4. Be wary of sexual discrimination

Dismissing or demoting a pregnant employee (or woman on maternity leave) can lead to problems. It can be considered as sexual discrimination, even if you believe you have a strong case for sacking her. Make sure you get the legal issues right.

5. – and other minority groups

Regardless of length of service, i’?s unlawful to dismiss an employee on these grounds: sex or marital status; colour; race; nationality or ethnic origins; physical or mental disability; sexual orientation; religion.

6. Record everything

Companies get into legal hot water by forgetting to record things like verbal warnings. Make employees sign a form to say that they’re aware of the action taken against them and agree that it’s fair. Don’t let anything slip by undocumented.

If you need to sack someone, follow these steps carefully. Get some advice before you rush into doing anything and you’ll avoid costly problems.

Managing Capability and Conduct Issues Effectively to Avoid Dismissal

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When capability and conduct issues come into play it is important to take proactive action to quickly remedy the situation whilst balancing your responsibilities in terms of employee statutory rights.  Here are some tips that can help:

  • When a performance issue arises deal with it there and then, not dealing with a problem in its infancy can lead to a major crisis if left to fester.
  • Give your employee the benefit of the doubt and work  in partnership with them to develop a suitable action plan.
  • Establish the causes of poor performance and pinpoint examples of where performance is lacking.
  • Put a road map in place that includes how you will support your employee, clear performance expectations going forward and any training, coaching programmes necessary  to rectify the situation.
  • Consider alternative employment options.  Whilst you do not have a duty to do this it is a good preventative step to avoid employment tribunal  and unfair dismissal claims.
  • Hold an informal meeting in the first instance to ensure that the employee understands why their behaviour has been deemed unsatisfactory and agree steps to ensure that the behaviour does not recur.
  • If informal warnings have not produced the desired invoke a formal disciplinary procedure including investigation of the facts and written warnings, before heading down the route of dismissal.In the event of an act of gross misconduct you have the right to dismiss the employee, following an investigation and meeting, without notice or pay in lieu of notice.

Sickness Absence

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Every employee will invariably be sick and unable to work from time to time.  But it is important to keep in contact to establish any support they need and when you can expect them to return to work. In extreme circumstances, or where you suspect the sickness my not be genuine, it may be necessary to terminate a contract of employment but you must follow a fair procedure first – do you have the correct processes in place?

Short Term Absence:

  • Discuss the problem with your employee as soon as possible and keep lines of communication open at all times
  • Monitor the absence and document the ‘calling in sick’ process.  Can the employee complete a self-certification notification or do you require a Dr’s letter?
  • Once your employee is fit to return to work, make sure you have all your ducks in a row and have conducted a thorough return to work interview
  • If necessary instigate a formal action process including warnings and dismissal, as a last resort
  • Learn from employee absence, conduct reviews and look for patterns that can help you to avoid absence in the future

Long Term Absence:

  • This is when a period of absence exceeds four weeks in duration.  In these instances an employee is required to provide medical support
  • Keep in regular contact and help to obtain medical advice that will assist in return to work
  • Avoid the risk of disability discrimination by taking your duty of care seriously and making all necessary adjustments
  • Manage return to work effectively, consider a phased return where necessary or take all the right steps to instigate dismissal on the grounds of ill health

Dismissal is always a last resort, factors that must be taken in to consideration before heading down this path include:

  • The nature and length of the illness
  • Length of service and previous record
  • Any improvement in attendance
  • The effect of absence on colleagues and the business as a whole
  • Whether there are other employment options available

Misconduct

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Despite every effort, even the best run business may encounter problems of misconduct from time to time.

Misconduct can range from a minor incidence of unsatisfactory behaviour to an act of violence, theft or malicious damage.  However, the one thing they all have in common is that if handled incorrectly they could not only damage your reputation but leave facing the prospect expensive unfair dismissal claims and employment tribunals.

It is often easier to deal with a minor incidence of misconduct informally by simply explaining to the employee why their behaviour has been deemed unsatisfactory and seeking agreement/agree steps to ensure it does not continue or recur.  However, if this does not have the desired result, or closer investigation reveals that the problem is bigger than initially thought, then it might be necessary to invoke a more formal approach. Most companies operate a 3-stage process: (1) written warning, (2) final written warning, (3) dismissal.

Avoidance is better than cure!  The key to protecting your business is to have in place a clear and fair disciplinary procedure that defines what behaviours you consider to be acts of misconduct relevant to the type of business you undertake and that this is communicated to every member of staff at the outset of employment.  The procedure should cover a range of circumstances, the different types of work performed by your employees, health and safety issues, risks to your business, timekeeping, use and care of company equipment, bullying/harassment, claiming expenses and use of email and internet.

Finally, whatever approach you take, always keep full and detailed records.  This is just as important for minor breaches as it is for acts of gross misconduct and will ensure that if the behaviour occurs or escalates you will find it easier to defend any subsequent claims of unfair dismissal and protect the reputation of your company.