We have an employee who has been under-performing for some time, and they have now fallen out with one of the directors. The director concerned has asked me to arrange a meeting between him and the employee, and has told me that he is going to “do an Alan Sugar”. I fear this means he intends to terminate this individual’s employment without going through any formal procedures, and perhaps without a fair reason for doing so. How should HR handle this situation?
You are right to be concerned. In his television show The Apprentice, Sir Alan Sugar is potentially encouraging businesses to contravene fundamental employment law principles, which are designed to protect employees from being unfairly dismissed.
You need to make the director aware that the company has a legal requirement to follow certain minimum procedural steps. To simply tell somebody that they are fired will almost certainly lead to a failure to comply with these steps (as set out in the Alternative Dispute Regulations).
In such circumstances, if a claim is successful at tribunal, it has the power to increase any compensation awarded by up to 50%.
As soon as you feel that action needs to be taken against one of your employees, you must first establish the facts behind the incident. Do this as soon as you can, especially if it involves another member of staff, to ensure the details are clear and fresh in everyone’s minds.
If you decide to pursue the incident further, you could either speak to the employee in an informal unofficial capacity, or deal with it officially by following the standard disciplinary procedure.
You should question whether implementing the formal disciplinary procedure and/or dismissing the employee is really the best way of dealing with what might essentially be a clash of personalities. It is important to distinguish between the ongoing performance issues and any recent ‘falling out’ with the director.
You should make the director aware that a tribunal claim is not the only potential consequence of unfairly dismissing an employee. Such a destructive method could have a serious impact on the morale of the workplace as a whole, resulting in poor productivity. Equally, it could result in negative publicity and a bad reputation, which could affect relations with existing and potential clients, and cause recruitment difficulties.
Alison Loveday, head of employment law, Berg Legal
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