Aside from the battle of running a business day-to-day, one of the biggest challenges a manager will face is dismissing an employee. But if you have good advice you can avoid the numerous potential pitfalls, according to Trula Brunsdon of business and employment law specialists Sherbornes.
Brunsdon, who has more than 18 years' legal experience bringing and defending a wide range of claims from unfair and constructive dismissal to discrimination and breach of contract, explains how best to proceed.
Why is it important to deal with dismissal correctly?
If a dismissal is not handled correctly, the biggest risk is that the employee brings a claim against the employer. That will result in management time and cost being diverted away from the business (regardless of the outcome), as well as the risk of a financial award being made against the company if the employee wins.
A badly handled dismissal may also affect the morale of remaining staff. If they have seen a colleague being treated in a way which they perceive is not fair, it could cause them to distrust the company or even prompt them to look for a new job.
In order to be fair, a dismissal has to be for a reason which the law accepts is fair and the correct process has to be followed.
What mistakes do employers make?
Delaying taking action. Dismissing an employee, or telling them there is a problem with their performance, conduct or attendance is never pleasant. As a result, some employers or managers delay addressing the problem.
Not only can that lead to greater shock on the part of the employee when it is raised (particularly if the situation has been ongoing for some time with nothing being said to indicate a problem), but it can also mean the employee gains the right to bring an unfair dismissal claim which they may not have done if the situation could not be resolved and their employment had ended sooner.
This is particularly relevant for newer employees. It’s surprising the number of times an employer lets an employee with unsatisfactory performance drift past the end of their probationary period and continue for the next few years before finally deciding to take action.
Another mistake can be dealing with the situation informally. Employers often try to manage a situation informally, perhaps because they feel more comfortable doing so or because they are not familiar or confident with following a formal process.
Although it can be good practice to try to deal with things informally (at least initially), if informal management doesn’t resolve things and it gets to the point of dismissal, a formal process would still need to be followed to ensure the dismissal is fair.
Then there is not giving a reason, or the real reason, for dismissal. Employers may be uncomfortable raising issues of performance, or have a misplaced belief that it’s not possible to dismiss someone if they are on long term sick or have a disability.
As a result, the employer may be tempted to claim there were issues with misconduct or that the person was redundant. Employment Tribunals are adept at identifying when someone is not being completely honest or trying to spin the truth so it’s far better to acknowledge the real reason and deal with it.
An employee is only legally entitled to be given the reason for dismissal in writing if they have been employed for two years, and only then if they actually ask for it. However, it’s sensible to confirm the reason in writing regardless of a request from the employee or their length of service.
If the employee later claims they were dismissed for a different reason, putting something in writing at the time will help the company avoid the situation of looking like they are belatedly identifying a fair reason.
And lastly, not considering alternatives to dismissal. Whilst not appropriate in all dismissal cases, when necessary, employers must consider if there is any alternative to dismissal.
In redundancy situations, that means looking for alternative roles. Employers should not just assume they know what role would be appropriate. It’s advisable to provide details of all vacant roles as an employee may have skills the company is unaware of, or may be prepared to accept a lower paid role in order to remain in employment.
What if the situation involves the employee's health?
For situations involving ill health capability, an employer should look at steps they can take to support the employee and enable them to remain in employment. Even if there isn’t a legal obligation to consider reasonable adjustments, by doing so it will help an employer demonstrate that there was no alternative other than dismissal.
It’s important to say an employer doesn’t have to create a role to keep an employee.
Do I need to offer a right of appeal?
Not only do the rules of natural justice require a right of appeal, the ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice, which applies to certain dismissals, also requires an appeal to be offered. An appeal forms part of the correct process which must be followed to achieve a fair dismissal.
How can employers avoid these mistakes?
Having identified a problem, be honest with yourself and your employee as to what that problem is and deal with it. An informal approach can be used to start, particularly in cases of poor performance, but once it becomes clear that an informal approach is not resolving the problem, move to a formal process.
However keep an open mind, situations may change, alternatives may arise, solutions may become apparent. Just because a formal process has been started, it doesn’t mean it has to end up in dismissal.
In fact, the aim of many processes, such as redundancy consultation and performance improvement, is to try to avoid dismissal. Finally, if there is no alternative, give the reason in writing and allow an appeal.
