Dismissal laws: Treading on eggshells

The current laws on dismissal, grievance and disciplinary procedures are notoriously problematic for HR, with many employers ending up at tribunal facing unfair dismissal claims. It is hoped the recent Gibbons Review and the resulting consultation are the first steps to making the system work better for both employers and staff.

The popular view is that new regulations will be introduced in 2009, but until then employers must abide by existing legislation. Here is Personnel Today’s survival guide for HR.


Ensure your managers know the rules

HR may be up with the dismissal, grievance and disciplinary procedures, but it is equally important that line managers know the law, advises Susan Gordon, partner in the employment team at law firm Nabarro.

She says as soon as an official grievance is received, or a manager decides to dismiss or discipline an employee, then HR should be aware that the statutory three-point procedure must kick into action.

This involves: first, calling the employee to a meeting in writing, explaining the reasons for the meeting and reminding them of their right to be accompanied by a colleague second, holding the meeting and third, giving the employee the right to appeal.

“HR should be going out into the business and training managers on these procedures,” says Gordon. “If the three-point process is not followed and the employee is dismissed, it will automatically result in an unfair dismissal charge at tribunal and could result in 50% uplift in any award given to the employee.”

Think about what level of management starts the procedure

When it comes to the appeal stage, an employee has the right to have their case heard by someone more senior than the person who took the initial meeting. If this doesn’t happen, the employer could find themselves breaching procedures, warns Michael Ball, a partner in the employment practice at law firm Halliwells.

“Think about what level of manager takes the first meeting, so you have a more senior manager available to deal with the appeal,” he says.

According to Ball, very small companies may be exempt from this requirement when using a more senior manager may not be reasonably practical.

Remember that the hurdle for raising a grievance is low

What may appear to be a trivial gripe to one person may be a serious grievance to another, so treat every complaint seriously. If an employee has a grievance, ask them if they want to make it official and then ask them to make this grievance in writing. This can also be in the form of an e-mail or a letter from their lawyer.

“Err on the side of caution and also look out for anything that may suggest bullying or discrimination,” advises Gordon.

Maintain the momentum

If an employee gets a doctor’s sicknote for a condition such as stress part way through a disciplinary procedure, employers should not necessarily halt the process, advises Julian Roskill, head of employment at law firm Mayer Brown.

He says: “Be firm but fair. They may be avoiding the issue and stress isn’t always a good enough reason to delay a meeting.

“Where appropriate, contact the employee and tell them: ‘If you are unwilling to turn up to a meeting, we will make a decision without you’.”

Remember the procedure at the end of a fixed-term contract

The expiry of a fixed-term contract also falls under the dismissal procedure, and employers must follow the three-point process even when there is no disciplinary or capability issue.

“This is one that a lot of employers forget and let slip through the net,” says Gordon.


Forget collective consultation

Statutory dismissal procedures don’t apply in cases where you have a collective redundancy of more than 90 employees, reminds Gordon.

“In these situations, you don’t have to follow individual procedures,” she explains. “There are separate regulations that allow an employer to consult with an employee representative, such as a trade union.”

Fall down on your correspondence

The three-point statutory procedure demands that an employee is invited in writing to a meeting to discuss their particular issue. But, says Ball, a surprising number of employers don’t get this simple piece of correspondence right.

“It must be an invitation to attend a meeting stating broadly what it will be about – be it their conduct or an accusation of stealing or whatever,” he says.

“The letter must also remind the individual they have the right to be accompanied by a colleague or union representative.

“If the dismissal is one of the likely outcomes of the meeting, then the individual must also be informed.”

This written correspondence with the employee can be in e-mail form.

Sit on evidence

If you have statements or evidence relating to the issue in question, don’t wait until the day of the meeting to show it to the employee, says Ball. Employers should disclose this evidence to employees in advance, so they fully understand the case they are meeting about.

“The regulations require that individuals are sent the evidence in advance, so they have adequate time to consider their response,” says Ball.

Put off dealing with any disciplinary procedures

Managers should be educated in how to pick up disciplinary problems early to avoid charges of unfair dismissal down the line, says Roskill.

“Often disciplinary issues are raised far too late, and by the time it reaches an official procedure, the employer is already preparing to exit the employee,” he says.

“This means the disciplinary procedure is a sham and could lead to claims of unfair dismissal.”

Forget you can run related procedures together

Where a disciplinary meeting has been called, the employee may bring in a counter grievance against their employer. But don’t think you have to run two separate procedures.

“A lot of employees try to sidetrack the disciplinary process by bringing a grievance, but you can normally run the two together,” says Ball.

“Most grievances an employee might have can be dealt with and considered as part of any mitigation at the disciplinary meeting,” he says.

Mcarthur glen designer outlets’ HR Director wants to see important changes

– With changes to the dismissal, grievance and disciplinary procedures mooted for 2009, what would HR like to see from the new legislation?

For Amanda Vaughan, HR director at McArthur Glen Designer Outlets, clarification is required in several areas.

First, she would like additional guidance on what constitutes a grievance. At the moment, she says, the definition is too broad and has been interpreted to encompass a huge variety of complaints, from the relatively minor to more serious issues, such as bullying and sexual harassment.

“Under the current law, an employer may feel it is best to go down the formal route just to be on the safe side, even in situations where previously they would have felt confident to deal with the matter on an informal basis,” says Vaughan. “The formal procedure creates a more adversarial environment and pits each side against the other from day one.”

Vaughan adds that she would like to see the term ‘grievance’ clearly defined, and the most serious categories of grievance separated out, with recommendations on how to deal with each type.

She would also like to see the appeal process tightened up, so that an employee can only request an appeal if they have good grounds.

“At the moment, there are no clear grounds on which to request an appeal, and it is too easy for the employee to appeal simply because they disagree with the decision,” she points out.

“What’s the point in having the initial meeting in the first place?”

“Under the current appeal system, it is too easy for situations to escalate quickly with senior managers having to deal with relatively minor issues,” Vaughan says.

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