Remote appointments, virtual onboarding and the lack of personal interaction in offices are key factors in recent employee dismissals, writes Maria Hoeritzauer.
Late last month, the work from home directive was lifted again in England and perhaps for the last time. But many businesses have not fully returned to the office for almost two years, if at all. Is there a connection between the “work from home” directive being withdrawn and a recent rise we’ve witnessed in employee dismissals?
The reality is that during the past two years most employers were unable to run their normal recruitment processes and onboarding in person and instead ran these remotely. Yet in-person meetings and onboarding are opportunities for the individual and the business to understand the ethos of one another, and to manage behavioural expectations and performance.
Working together in an office allows for new hires to observe their peers and managers, to develop working relationships with one another, receive informal training, and to understand how their peers deal with tricky situations.
While technology has been a lifeline for employers to recruit and onboard new hires, HR teams have worked immensely hard to ensure that these processes and indeed, remote working, has been effective and efficient. But team dynamics will almost certainly be different where the individuals have never met in person and only meet infrequently for formal meetings, in comparison with those developed in person.
Although managers may expect the individual to perform to the same standards as a colleague who worked in the office, it must be recognised that working remotely made it more difficult for managers to observe behaviours and training needs, or to speak informally with new hires to rectify issues.
Flexible working issues
This difference in expectations has resulted in an increase in enquiries to employment lawyers on managing and potentially dismissing employees who were hired during lockdown – and who, by definition, have less than two years’ service.
Common issues are that the new hires working from home do not understand or observe the ethos and commercial needs of their employer, and are not behaving or performing to the standards required of them. And, in addition, that most new hires are not actually wanting to come back to the office full time now restrictions have been lifted.
What options are available?
For employees with less than two years’ service, there are two options open to employers: either to invest in the individual with the aim of compromising on working from home to some office working to help ensure they hit the standards required of them and retain them, or to dismiss them, whether on grounds of conduct or performance.
For an employer, the attraction is that under two years’ service an employee is unable to claim ordinary unfair dismissal. Unless there is a contractual disciplinary policy, there is no legal obligation on employers to follow a formal dismissal process – and so many employers consider that there is little risk of the individual bringing a successful employment tribunal claim.
Team dynamics will almost certainly be different where the individuals have never met in person”
But what is often overlooked is that there are actually 30 automatically unfair reasons where two years’ service is not required. These range from discrimination, raising health and safety concerns, acting as an employee representative, exerting a statutory right or being dismissed for taking time off for family emergencies. Failure to follow a process can lead to an uplift of compensation by up to 25% and an additional fine by the tribunal of up to £20,000 for blatantly ignoring an employee’s rights.
In some cases, continuing an employee’s employment and managing their performance and conduct, will be preferable. This may be because they have or will shortly accrue two years’ service, or because they are performing a role which is in high demand and which recruitment for will be immensely difficult. HR advisers are well placed to support the organisation in this endeavour, but also will be well placed to increase employee engagement and motivation generally, particularly if staff are nervous about returning to the office.
If the employer decides to dismiss, it should identify the reason for dismissal (ideally ensuring there is a paper trail showing when concerns were raised with the individual). This will show that there were genuine concerns and the employee has not been dismissed for taking for example, emergency family leave, when the employee will accrue two years’ service (which must be at least a full week after the dismissal takes place), whether there are any risk factors in play (eg discrimination), and finally, how and when to dismiss the individual.
The business must ensure it meets any contractual obligations it has regarding the dismissal process such as giving notice in writing, which will normally be found in the employment contract. Failure to comply means the employment is still continuing.
Equally, dismissal is only effective when the employee receives this notice. So, if they have moved and not received the letter or not opened the email informing them of the dismissal, then they have not been dismissed. In some situations, it will be prudent (or contractually obligatory) to follow a formal performance management process in order to limit risk and to give the individual an opportunity to improve.