My advice is that companies minimize the risk of employees successfully contesting dismissal, which means ensuring you are clued up on the correct procedure. To begin, there are generally five different grounds for dismissal: redundancy, gross misconduct or some other very substantial reason, ill health and capability - where the employee is simply not up to the job. As simple as it sounds deciding on what grounds you are dismissing someone in the first place is crucial, as the procedure will change. Of universal importance, however, is the need for clear communication. You need to not only comply with procedure but also explain the steps you are taking and most importantly why. Ensure you have a proper paper trail throughout and be sure to give the employee the opportunity to respond themselves to each of your concerns. The importance of fairness cannot be overstated; this needs to be a dialogue. There are also best practice guidelines to follow for each individual dismissal category, which I always advise to my clients when guiding a case or providing independent advice to avoid tribunal.
Avoiding allegations of personal bias is key. Equally, before a disciplinary hearing be sure to undertake a thorough investigation taking into account the different versions of events - and be sure to share all of the information gathered with the employee concerned. Written minutes which are, preferably, signed by both the employee and employer, as an accurate record of what was said at each meeting is also important, as is giving the employee sufficient time (at least a full week’s notice) to prepare for the disciplinary hearing. These are common mistakes I come across when involved at a later stage in the proceedings where I am considering the strength of cases either for Claimants or Employers before tribunal.
Responding to staff sickness needs to be handled sensitively, and as a general guide where an employee has a disability you are expected to make reasonable adjustments to accommodate them. You should be slow to dismiss an individual where the period of ill health is not protracted (eg under three months), and where an individual suffers from a disability you will need to consider options which would allow them to return to the workplace such as reducing hours or investing in appropriate software to assist them in undertaking tasks. If their health is truly restricting them from performing their job you need to refer to their doctor and an occupational health expert before pursuing dismissal, always ensuring any decision you make has taken into account up-to-date medical advice and prognosis.
Ultimately the law is there to protect both employee and employer, but with tribunal costs falling on businesses, and in light of recent research from the Legal Services Board revealing that more than half of UK small businesses are handling their own disputes to avoid high solicitor fees, companies need to be aware of the options available to them. From reading up on the dos and don’ts of dismissal, to consulting with an expert direct access barrister to provide a steer on the merits of your case and course of action, there are affordable resources available to help reduce the cost and stress of dismissals. In fact, many companies are unaware that it may be cost-effective to instruct a barrister directly, where they have the capacity to do some of the basic preparation for a case themselves.
Mediation and Arbitration
The mediation process follows a usual pattern whereby the specialist prioritises the issues and requirements of each party, explores areas and proposals not previously considered, draws out potential solutions from the parties and finally reaches an approved agreement that is signed by both parties. The result is often a much more stress-free resolution than a tribunal, saving costs while at the same time providing a more rewarding experience where both parties feel part of the process, clearly guided and that their points of view are being fully understood.
Taking on new employees can seem a leap of faith and the stakes are always higher for SMEs keen to keep their costs down, but by putting clear policies in place and keeping records it is possible to protect your business against employment disputes, and feel prepared in the event of a disagreement. Susan Belgrave - myBarrister Employment Law Specialist http://www.mybarrister.co.uk/node/648
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