We all know that tribunal claims can be a time consuming and costly affair. The cost to businesses can be significant and is not limited to the financial element of any compensation or award: It is a general rule that businesses do NOT recover their costs even when they are successful at tribunal. As those of you who have experienced a tribunal first hand will know, much time spent on preparing for, and attending the tribunal itself. You might think that it would stop there, but as the bill keeps mounting you have the additional pressure of managing any adverse publicity. No business wants to be the subject of press headlines or give employees a source of gossip on the shop floor, so to speak.
With this in mind let’s consider how we can look to dismiss an employee whilst avoiding a potential Tribunal claim;
1. Check the contract – We are often asked by employers if they can dismiss an employee and our first step is always to check the contract. In order to avoid a tribunal it is important to check what steps or procedures must be followed – your disciplinary procedures are particularly important as they will detail expected conduct and performance standards required from the employee. Your procedures will also detail the steps that must be taken in handling any issues which arise, which includes those that may ultimately result in dismissal.
2. Check length of service – It is important to act promptly when employee is in a probation period or under a year service. If an employee is unsuitable for the role it is less risky to dismiss during this time, as they cannot claim for unfair dismissal unless citing discrimination issues or an automatically unfair reason.
3. Record all issues – One of the easiest mistakes employers make is failing to record all issues with an employee. Quite often this is a result of good faith on the part of the employer who may hope for improvement or wish to avoid an unpleasant situation, but we would advise you fully document all issues. When it comes to considering disciplinary action, including that which may result in dismissal, this could prove to be important evidence and also the foundation on which you look to your formal procedures.
4. Plan ahead - At the start of any disciplinary process we’d suggest you plan ahead as to who may be able to deal with each stage so that a different person is available to deal with each stage of the process. We’d advise the most senior person should be kept to take the appeal meeting and should not therefore be involved at investigation or disciplinary stages.
5. Fully Investigate – Sometimes the first impression is the wrong impression. Never make assumptions and predetermine the outcome. This is crucial if you are following a procedure where the potential outcome is dismissal.
6. Dot your ‘I’s and cross your ‘T’s – A paper trail is essential to limiting the risk of dismissing an employee. Record all minutes, correspondence and evidence. Ensure also to get all minutes signed by the employee as this will demonstrate that the employee has agreed with the minutes and that they are a true reflection of what was discussed.
7. Ensure that you have a fair reason to dismiss – There are a number of fair reasons for dismissal provided for in statute, and these include Conduct, Capability, Redundancy and Some Other Substantial Reason (SOSR). If an employee is eligible to present a claim to a Tribunal for unfair dismissal it will be for you, the employer, to show that you had a fair reason to dismiss.
8. Act reasonably – What is reasonable?
It is important that you act reasonably in order to limit the potential for an employee to consider tribunal action. We’d suggest you ask yourself;
• Have you acted consistently with all employees in the same situation?
• Would you dismiss another employee for the same allegation?
• Are there reasonable grounds for belief?
9. Make sure you give the right of appeal – Remember the process does not end at the point of dismissing the employee. Be sure to issue a written outcome and include the reason for the dismissal. Make sure you also give the right to appeal and include details of the person they should write to and the timescale for doing so.
10. TAKE ADVICE – That’s what we are here for!
For any more information or assistance on the issues above, then please call our 24 Hour Advice Service on 0844 892 2786.
How to Dismiss an Employee and avoid a Tribunal 10 Top Tips
April 27 2012