Tag Archives: unfair dismissal

Unfair Dismissal Claims – Q and A

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Here are some common questions about unfair dismissal and my answers to them.

Q – What is unfair dismissal?

A – Dismissals are classed as ‘automatically unfair’, regardless of the reasonableness, if an employee is exercising their rights related to the following:

  • Pregnancy, including all reasons relating to maternity
  • Family reasons, including parental leave, paternity leave, adoption leave or time off for dependants
  • Representative and trade union membership grounds and union recognition
  • Discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation
  • Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage.

Q – When is a dismissal fair?

A – Dismissal is normally fair if an employer can show that it is for one of the following reasons:

  • A reason related to an employee’s conduct
  • A reason related to an employee’s capability or qualifications for the job
  • Because of a redundancy
  • Because a statutory duty or restriction prohibited the employment being continued
  • Some other substantial reason of a kind which justifies the dismissal.

Q – How do you dismiss employees?

A – The key points to remember are:

    • Dismissing employees should be the last resort and employers should carry out necessary investigations without unreasonable delay to establish the facts
    • Employers should use a fair and consistent procedure when dismissing employees
    • It’s always best to try to resolve any issues informally first
    • Employees have the right not to be unfairly dismissed
    • Set out in writing your rules and procedures for handling disciplinary procedures
    • Make sure employees and managers understand the rules and procedures for disciplinary issues.

Q – When can an employee make a claim about unfair dismissal?

A – In most circumstances employees will need to qualify before they can make a complaint to an employment tribunal. They need:

  • At least one year’s continuous service for employees in employment before 6th April 2012
  • Two years for employees starting employment on or after 6th April 2012.

Q – How do you avoid costly mistakes?

A – Before thinking about dismissing an employee, stop and think – are you doing the right thing? To make sure that you comply with the law and don’t make any costly mistakes, whether you’re an employee or an employer, get the right advice.

Can You Serve an Unfair Dismissal Claim While on ‘Garden Leave’?

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‘Garden leave’ is a period of time after you’ve been asked to leave your job or you’ve been made redundant, when your employer carries on paying you, but when they don’t want you to continue coming to work. During this time, you’re still employed so you can’t take another job with a different employer.

So can you serve an unfair dismissal claim while on garden leave? Can you appeal against being asked to leave your job?

To serve an unfair dismissal claim, you need to complete the form ET1 to send to the employment tribunal. You can only submit this form after you have been dismissed and worked your notice. ‘Garden leave’ is notice without having to do the work you’re being paid for. If you’re thinking about a tribunal application then you must do this within three months of your termination date. If you’re on ‘garden leave’ then you are still employed, even though you’re not working. This means that if you want to make a claim for unfair dismissal, you can’t do it during a period of garden leave – you have to wait until you actually finish working for that employer and they are no longer paying you.

Your contract of employment will tell you what else you can and can’t do while on garden leave and what your employer will expect from you during that time.

In addition, if you were employed after 6 April 2012, you need to have worked for the company for two years, to be able to claim unfair dismissal. If you started work before 6 April 2012 you have to have completed one year’s service to be able to claim unfair dismissal. (This means that at the time of writing this blog in March 2013, no one will actually be able to claim that they have been unfairly dismissed until 6 April 2014.)

There is more information on all this, including a short video that explains it all, on my website. Click here to watch the video.

How Do You Get More From Your Staff? Part Two

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In a recent blog we looked at the importance of managing performance as a way of getting more from your staff, without dramatically increasing your costs.

Here are some top tips you can actually put into action, to get more from your people:

  • Provide a stimulating working environment that encourages members of staff to contribute to the progress of your business.
  • Encourage your staff to reach their full potential by providing opportunities to develop their skills through training and development, as well as coaching in the soft skills needed to be an excellent team member.
  • Carry out formal performance reviews on a regular basis, setting clear objectives and achievable targets; don’t wait for annual appraisals.
  • Build good relationships by providing regular informal feedback and guidance; allow your staff to air their concerns within an environment of trust and honesty.
  • Deal with issues as soon as they arise – don’t wait for them to become problems.
  • Offer a clear career path, to encourage employees to be the best they can be and stay with you for the long term.

How do you get more from your people? What have you done that has worked – or not worked? Leave a reply below.

If you still have questions about how to improve the performance of your team, come to our next workshop on 22 November 2012 near Henley. Places are free but limited, so click here for full details.

Capability vs. Disciplinary – Case Study

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In a recent blog we looked at performance management and how to distinguish between issues of capability and misconduct when dealing with the underperformance of employees.  To bring this issue to life we would like to introduce you to Annabelle.

Annabelle has worked as a marketing assistant in the marketing department of retail company for 3 years, during this time she has consistently underperformed, indeed underperformance was an issue from day one for Annabelle when she failed her probationary period.

Taking a proactive approach rather than instantly dismissing Annabelle, her employer provided some coaching.  This initially had a positive effect on her performance but unfortunately in recent months things have begun to slip again, she repeatedly, and frustrating for her manager, makes the same mistakes over and over, does not take guidance well, often has to have tasks explained to her several times and makes consistent inaccuracies in proposals  .

Now a major problem for her employer, Annabelle’s mistakes are costing them money and having a detrimental effect on the marketing team and business as a whole.  Annabelle’s manager is results driven, he feels she has been given an easy ride by the business and undertakes a formal review of her work.

On the flip side, Annabelle feels that she has not been supported by her employer, that she is not being properly managed and that she lacks coherent and consistent guidance.

Annabelle’s manager invites her to a meeting to discuss the on-going issues with her performance and although this meeting is handled in a professional manner, with legitimate concerns raised and examples of underperformance given, Annabelle feels bullied and raises a formal grievance against her manager.

Both sides are now aggrieved – what is the solution?

 

Check out next week’s blog for the solution to this problem.

 

 

Unfair Dismissal ? the latest legal developments

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On 6th April a simple but highly controversial change in unfair dismissal law came into force.  From this date, the qualifying period for unfair dismissal went up from one year to two years, meaning that until an employee has completed a continuous period of two years in their employment they will not be able to bring a case of unfair dismissal.

However, it is important also to note that this only applies to employees whose contracts commenced on or after 6 April 2012.  Anyone employed before that date will qualify for unfair dismissal after a single year of continuous service.

Please update your disciplinary and grievance procedures to reflect these changes.

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.