Monthly Archives: September 2018

Fair Dismissal Can Prevent Tribunal Troubles

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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:

  1. Capability or performance
  2. Conduct
  3. Redundancy
  4. Contravention of a statutory duty or restriction
  5. “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:

  1. 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.

  1. Conduct

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.

  1. Redundancy

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.

  1. 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.

  1. 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.

Dismissal for Some Other Substantial Reason: Demystified – Part Two

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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

Initial Action

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.

HIV

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!