Latest Elham Breakfast Forum report : Is it fair? AMB notes

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1 Latest Elham Breakfast Forum report : Is it fair? AMB notes Employer has to show The reason for dismissal That is one of the fair grounds. (no pun intended) Employers will always try and ensure that they have made the case fit the justifiable reasons but the tribunal is looking not just at the procedures but the ACTUAL reason. So for example is a dismissal just after a successful grievance? Probably not. Levels of Tribunal Awards There must be a fair reason for the dismissal There are five potentially fair reasons for dismissal: Conduct. This could be a single act of misconduct or a series of less serious acts. Define in your handbook. Capability or qualifications. This includes poor performance, ill-health and formal qualifications. Redundancy. This includes workplace closure, business closure, or reduced need for employees. Not going to cover that as it is a topic on its own. 1

2 Illegality. Where continuing to employ the employee in the position they hold would contravene a statutory restriction - for example, because of their immigration status. In my working life only dealt with once and that was worker s status. "Some other substantial reason" (SOSR). This is a catch-all category of potentially fair reasons that do not fall under the other categories. For example, this category may include dismissals for failure to agree to changes to terms and conditions, pressure from third parties such as clients, and business reorganisations falling short of a genuine redundancy situation. The employee should be dismissed in accordance with their contract So notice should be given unless gross misconduct which, is, anyway because of fundamental breach by employee. Employees generally have a right to be given a period of notice (or, depending on their contract, a payment in lieu of notice (PILON)) if their employment is terminated. Restrictive covenants and wrongful dismissal Dismissing in a manner that breaches an employee's contract, for example by failing to give adequate notice, or terminating a fixed-term contract early, is likely to lose the employer the benefit of any contractual rights, such as post-employment restrictions preventing the employee working for a competitor and/or poaching the employer's customers or staff. It would also result in the employee having a claim for wrongful dismissal. The employer must follow a fair procedure Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss. In cases of misconduct or poor performance, the employer should comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. Failure to do so may lead to a finding of unfair dismissal and the tribunal may increase compensation by up to 25% if the failure to comply with the Acas Code was unreasonable. The employee also has a statutory right to be accompanied by a colleague or a trade union representative at any disciplinary hearings. For all other types of dismissal, including redundancy, there is still a requirement to follow a fair procedure. It is important to give an employee sufficient information about the reasons for their possible dismissal, a reasonable period of time to consider that information, and the opportunity to respond at a hearing or meeting, before reaching a final decision. It is also advisable to give a right of appeal in most cases. 2

3 The employer must dismiss "reasonably" Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal. This will involve taking into consideration different factors, depending on the reason for dismissal. For example, where an employee is being dismissed because they are not capable of doing the job, an employer will usually have to give the employee a chance to improve. All the circumstances, including the size and resources of the employer, will be relevant when determining whether it acted reasonably. Acas Code of Practice Failing to follow the Acas Code of Practice in cases of misconduct or poor performance can result in an uplift of up to 25% on any compensation arising out of the dismissal. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made. If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may well be allowed under an employer s own procedure. If a worker s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed. 3

4 Poor performance It is for the employer to establish the reason or principal for dismissal in any unfair dismissal claim. Lack of clear evidence of poor performance is therefore likely to prevent the employer demonstrating that as a reason for dismissal. If the employer fails to show a clear reason or principal reason for dismissal they will not be able to demonstrate reasonable reliance on poor performance and the dismissal will be unfair. Does the employer have a reasonable belief in the employee's incompetence? Where the employer has dismissed an employee for incompetence, it will have to show that it had a reasonable belief in the employee's incompetence when it took the decision to dismiss. Whenever an employee is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent". Appraisals Very often an employer will want to dismiss for this but will be hamstrung because of past acceptable assessments. Don t overscore and make sure performance issues are addressed. Current performance It may be difficult to show that a relatively long-serving employee is unable to perform their job properly unless there is a change in circumstances, for example the employee has become ill or the job has changed, perhaps as a result of advancing technology. In Raynor v Remploy Ltd [1973] IRLR 3, the employer failed to establish the reason for the dismissal was that the employee, in this case a general manager, was a bad administrator and lacked business judgment. The employee had been employed for five years and had produced good results in that time. PIP The Acas Code recommends that at least two warnings are given before an individual is dismissed for poor performance, unless there is gross negligence or dismissal arises during a probationary period. For an example of a case in which the employer's failure to warn the employee that she would be dismissed if her written work did not improve rendered the dismissal unfair, see British Sulphur Corporation v Lawrie EAT/159/86. 4

5 What is a reasonable timescale for improvement? What period of time is considered reasonable is a fact-sensitive question and will depend on the circumstances and the role in question. If a capability procedure provides for a certain timescale for improvement, this should be adhered to, and equally if there is an industry standard that is considered reasonable. This should be in your handbook and look at support and training as well as monitoring the performance in the time scale provided. And then let the employee know The nature of the shortcomings in their performance. The date, time and place of the capability meeting. Summary of relevant information and any relevant documents. the procedure to be followed. The possible consequences if performance is found to have fallen short of the required standard. The right to be accompanied by a trade union official or a fellow worker (for more on the right to be accompanied,). The aim of the meeting will be to: Enable both employer and employee to explain their cases fully. Give the employee ample opportunity during the interview to respond and give their explanation to the issues raised in relation to their performance. Explore and, if possible, identify the cause of the underperformance. Determine what, if any, remedial action can be taken. Obtain the employee's commitment to reaching the required standard. Set a reasonable period for the employee to reach that standard. Agree on a monitoring system during that period. Tell the employee what will happen if that standard is not met. Decision to dismiss and previous warnings Misconduct (always specify in handbook) If it is not gross then some other sanction maybe even straight to final warning will be appropriate. But Investigation not by person presiding over the disciplinary hearing. Suspension Neutral act but often not perceived as such. 5

6 Information to be given to the employee before the disciplinary hearing. Subject to any additional requirements that may be stipulated by an employer's own disciplinary procedure, the following steps should be adopted: Once the investigation is complete, if the employer decides that formal disciplinary action is required, it should write to the employee to confirm the outcome of the investigation and invite them to a disciplinary hearing. The letter should set out sufficient information about the allegations and their possible consequences to enable the employee to prepare their case for the disciplinary hearing (paragraph 9, Acas Code). If the employee is still working, the letter should be given to them in person. If the employee is on suspension, the employer should consider using a courier to deliver the letter, rather than relying on the post. If not, recorded or registered mail and a copy to a private address (if known) should be used to prevent any allegation that the letter was not received by the employee. If an employee fails to attend the first meeting arranged, it will usually be good practice for the employer to re-arrange the meeting to an alternative date in order to give the employee a further chance to attend. An Appeal is always to be provided for Ill health dismissals Can be before sick pay runs out if medical advice is not going to be fit to return but watch out for Disabilty discrimination because it might be reasonable to wait for medical appointments. 6

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