Most employers are aware that being taken to an Employment Tribunal is a costly and time consuming matter. The cost to the business can be significant not only in terms of the financial implications of paying out legal fees or potential compensation but also in terms of time spent in preparing for and attending Tribunals and not to mention the adverse publicity this can bring.
Therefore, what can an employer do to avoid this prospect?
Don’t leave your business open to tribunal
Statute currently recognises five reasons which make a dismissal fair, these are:
- Capability (under performance)
- Some other substantial reason
- Statutory bar (e.g driver who loses his driving licence)
If an employee takes their employer to an Employment Tribunal for unfair dismissal then it would be for that employer to demonstrate that they had a fair reason to dismiss. The following top ten tips outline how you can treat employees fairly and reasonably when you need to dismiss them.
- Ensure you have a robust Contract of Employment in place – When considering whether a dismissal has been fair a Tribunal will also look at the steps that were followed leading to the dismissal. Whilst it is not essential, Tribunals do expect employers to follow the ACAS Code of Practice and their own dismissal procedures. A Contract of Employment will make clear to staff what this process involves and how dismissal meetings will be conducted.
- Make your staff aware of the rules of the business and other policies and procedures that apply to them – In most cases an Employee Handbook will cover all the essential areas of expected workplace practice, Company rules and their boundaries. However, for some businesses they may require more detailed/focused policies and procedures e.g Sickness Absence Management, to ensure that their staff are aware of the specific details should this area of performance become an issue. Making staff aware of the expectations within the workplace and the consequences of failing to adhere to these will ensure that everyone is clear and therefore doesn’t allow for any confusion should an issue arise.
- Try to deal with issues informally in the first instance – For some cases e.g an allegation of gross misconduct or compulsory redundancies this may not be possible. However, a lot of issues, if left, build up into bigger problems that can become much harder to manage or more difficult in avoiding formal processes. If issues can be ‘nipped in the bud’ employers often find practice or performance improves without further recourse to formal procedures.
- Fully investigate areas of concern or allegations of misconduct – Even if you believe the conduct is so severe or the performance is so poor you still need to ensure that you have conducted a full, fair and thorough investigation into the facts of the case prior to making a decision to dismiss. Many Companies have failed to invest in this important stage of a dismissal process leading to embarrassing and costly revelations at Tribunal.
- Follow the ACAS Code of Practice 3 step rule – The ACAS code states that as a minimum i. an employee needs to be made aware of the allegation/reason for potential dismissal and should be invited to respond to this reason at the dismissal meeting. ii. they should be given the right to representation i.e a Union Representative or a work place colleague and iii. They should be offered the right of appeal. Failing to follow this 3 step rule could find an employer having not followed the correct procedure and whilst the reason for dismissal may have been fair failing to have not followed the correct procedure could lead to a loss at Tribunal.
- Train your Managers/Supervisors on how to correctly manage issues that may lead to dismissal – It’s all well and good having in place robust HR policies and procedures, but these procedures are only as good as the people who are going to implement and use them. Providing your Managers and Supervisors with adequate training on these sometimes complicated procedures not only ensures that they are understood but that they are also put into practice accordingly.
- Ensure that you record issues and retain relevant documentation – It is essential that records are kept whether it be for redundancy related dismissal, misconduct or dismissal related to poor performance. Not only does referring to written evidence ensure a fair and equitable process internally but should you find yourself at Tribunal providing hard documentary evidence will go a long way in supporting your defence.
- Act Reasonably – It is important that you act reasonably when contemplating dismissal in order to limit the potential for an employee to submit a claim for unfair dismissal. Ensure you have reasonable grounds for the dismissal, that you have acted in accordance with your internal policies and procedures and that you have acted consistently, applying the same decisions as you would with any other employee in a similar situation.
- Offer the right to appeal – An employee should be given the right to appeal any formal decision made against them, especially when it comes to dismissal. As stated above, it is a requirement of the ACAS Code of Practice to offer the right of appeal against any decision to dismiss and failure to do so could lead to greater compensation being awarded should the dismissal be found to be unfair.
- Seek advice – Dismissing an employee even where you believe you have no alternative and where the dismissal falls under one of the fair reasons stated above can still be a complicated and complex process. Having a fair reason is not enough on its own, an employer will need to demonstrate that not only was the reason a fair one but that they acted reasonably and that they followed a fair and through process. Even then it is not guaranteed that somewhere along the way an error hasn’t occurred that may give rise to an Employment Tribunal claim.