Darling, bad news. I ve been sacked, all bar an investigation, a grievance, a disciplinary hearing, an appeal and possible tribunal! The exit s that way. Employment termination 1
Tribunal Claim Statistics Year 2005/06 2006/07 2007/08 2008/09 2009/10 Claims 115,039 132,577 189,303 151,028 236,100 2
Why so many claims? Recession Costs regime Demise of mandatory rules? 3
Fair Dismissal Reasons (statutory) [stage 1] Capability - performance or sickness Conduct - misdemeanours Retirement Contravention of enactment 4
Fair Dismissal Reasons (statutory) (cont.) Redundancy - shutting down business, location or need fewer staff Some other substantial reason catch all, e.g. reorganisation personality clash customer pressure contract change refusal N.B. non renewal of fixed term contract = dismissal 5
Did Employer act reasonably? [stage 2] Is reason sufficient to justify dismissal? Range of reasonable responses Procedural fairness Would fair procedure have made a difference? 6
Procedural Fundamentals Chance to state case Right to be accompanied Warnings Right to appeal 7
ACAS Code (1) 1. Employment Tribunal will take into account when assessing fairness of dismissal 2. Sets out reasonable process 3. Only applies to conduct and capability dismissals 4. Breach: up to 25% compensation adjustment 8
ACAS Code (2) 1. Informal stage 2. Investigate issues thoroughly 3. Write: areas of concern + supporting evidence and possible consequences (e.g. dismissal) 9
ACAS Code (3) 4. Meeting to discuss issues - witnesses? 5. Decision - never dismiss first time around (unless gross misconduct) 6. Warning - be clear: required improvement and consequences of repetition 7. Appeal mechanism 10
Case Study (1) Laws Stores Ltd -v- Oliphant [1978] Mrs Oliphant was dismissed for failing to follow till procedure. She failed to register the sum of 1.14 in respect of a jar of coffee and did not put the money in her till or offer a receipt. She was not given a chance to explain herself. The disciplinary procedure said that failure to follow till procedure was gross misconduct and would normally result in instant dismissal. 11
Case Study (2) Laws Stores Ltd -v- Oliphant [1978] Decision Dismissal was held to be procedurally unfair because Ms Oliphant was not given adequate opportunity to provide an explanation. In addition, it was held that the single lapse on her part was not sufficiently serious misconduct to justify instant dismissal. The disciplinary rules allowed an element of discretion. 12
Sickness absence Timescales - needs of employer/employee Feasibility of temporary cover Size and administrative resources Obtain medical input 13
Sickness absence (cont.) Warn and consult Consider alternative employment Equality Act 2010 consider reasonable adjustments Right to appeal 14
Redundancy Communicate proposal No prejudgment Pool Bumping 15
Redundancy (cont.) Warn and consult Select fairly - using objective criteria e.g. qualifications disciplinary record attendance record? Consider alternative roles Right to appeal 16
Wrapping up a severance deal 17
Compromising employment claims Contractual claims Statutory claims ACAS Compromise agreements 18
Compromise agreements requirements statutory In writing Particular complaint or proceedings Independent legal advice Professional insurance or equivalent Agreement must identify adviser State conditions have been satisfied 19
Compromise agreements claims excluded Personal injury Pension rights Future claims Some statutory claims 20
The without prejudice rule Timing What to say (and what NOT to say) 21
How much should we offer? Basic award Loss of statutory rights Compensatory award Injury to feelings Notice pay 22
Factors to consider Costs Management time Mitigation - has employee found alternative employment? 23
What to cover Equality Act 2010 Restrictive covenants Social media References/announcements Company property 24
Issues for senior employees Resignation from directorships Co-operation in future issues 25