Employment disputes in the workplace cost time and money, with the fear of tribunal often acting as a significant barrier for businesses, particularly SMEs. It is often cited as a factor in dissuading companies from taking on staff, which could, ultimately, disrupt the growth of their business.
As an employment barrister, I have seen first-hand the impact that long, drawn-out employment tribunals can have. Often taking at least six months between the claim and hearing, the drawbacks aren’t just monetary (as the costs fall to businesses), but also include stress for all sides affecting staff morale.
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.
While most businesses, even small SMEs without a dedicated HR department, are aware of the need for disciplinary hearings for gross misconduct dismissals, it is important to have considered the range of sanctions which may be available and to ensure you are consistent in the standards you impose throughout the company. For example you shouldn’t fire someone for an offence where weeks previously in similar circumstances another employee received only a final warning. If you decide to do so you must be able to justify the distinction you see between the two cases and provide evidence to satisfy the tribunal of the reason for the apparent discrepancy. 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.
Although, capability is one of the more common reasons for dismissal, issues involved in this type of dismissal can also be the most frustrating for employers where you are questioning an employee’s competence or ability to do the job. Key to these cases is the need to give the employee an opportunity to improve – no matter how unlikely you think their success may be. Instead, clearly set out where they are falling short – are they too slow or lacking key skills for example – and then decide on fair targets to be met following a 3-6 month review period. Remember to consult the employee’s original contract too to make sure that your demands are in line with their actual job requirements and that you have provided adequate training to assist them in that task.
Ill health dismissals also fall under the rubric of capability but may also involve an employee with a disability. 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.
Taken into consideration against the other grounds for dismissal, redundancy has the clearest parameters and is the least affected by individual circumstance. In all cases where you pursue redundancy you need to demonstrate that the employee’s job will no longer exist, for example if your company no longer has a requirement for someone (or such a large number of people) to carry out the function they undertake. Fair selection criteria must also be met when selecting the individual for redundancy, and the employee must be consulted about these reasons for their selection. In the event of a genuine redundancy, employees must also be considered for redeployment if possible. This may involve a trial period and without losing their right to redundancy pay. Finally, an employee in such circumstances may expect to be given reasonable time off to attend interviews to find a new job.
Despite the best efforts of those involved, employment tribunals are a business reality and when faced with a claim it is best to take them seriously from the outset rather than burying your head in the sand or thinking it will go away because there is no substance to the claim. It is also critical to file your response to the claim within the 28-day timeframe, as failure to do so will often result in a default judgment in the employee’s favour. And when it comes to preparing your case this is where your earlier due diligence will reap dividends as a record of your actions. Establishing that correct procedure and clear communication took place avoids ‘your word against theirs’ arguments.
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
Another option which may have been overlooked, and which the government is actively promoting is mediation and arbitration. Again, many barristers are also qualified to undertake these services which are a way of settling disputes without going to court or taking legal action.
With the agreement of both parties, a mediator is as an unbiased intermediary helping the parties to reach a satisfactory outcome. An arbitrator is appointed by both parties to make a binding decision based on the law. 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.