I’ve heard people say many times “you can’t dismiss anyone these days” which is just not true. What is true is that quite rightly, employees have certain rights ie, not to be unfairly dismissed, not to be discriminated against etc, so if you wish to dismiss someone, there are some basic steps to follow if you wish to avoid an Employment Tribunal or win a case if you are unlucky enough to be taken to one.
1. Have a disciplinary procedure in place
Although this may be stating the obvious, many small businesses still do not have one and then wonder what they have to do if a problem occurs. A good procedure will basically explain what you should do and the steps to take. If you have one, follow it. If you haven’t got one, get one, either via a HR consultant or use the ACAS guide to put one together. Any policy and procedure should be made available to all employees.
2. Tackle issues early
Don’t let things fester if you have an issue or you think you may have one, tackle it early. This could take the form of a conversation eg about work performance. What are they doing that you don’t like? Are your instructions clear? Have they been trained? What support do they need? And what could happen if no improvement etc? Although these conversations can be difficult and uncomfortable, the consequences of not having them could be worse. Any conversations like this should be in private and you should at least make a diary note of that conversation i.e. when, where and what was said. You may need that evidence (see 3) in the future and if there is any dispute about what took place, an Employment Tribunal will accept that as evidence.
Any decision to dismiss should be evidence based. Not on gut feel, speculation, hearsay etc. if it’s a serious offence, a proper investigation should take place, ideally not by the person who will make the decision. That investigation should include eg witness statements, paperwork, CCTV, anything which is appropriate. If it is someone who is absent a lot taking short days, look at the reasons, is there a pattern, get a doctor’s or occupational health report to see if there are any underlying causes before you dismiss. Any decision to dismiss must be evidence based on a full and fair investigation. Don’t skimp on any investigation especially if a dismissal is a distinct possibility.
4. Suspend or not Suspend
In serious cases, it may be necessary to suspend an employee while the case is being investigated. It should only be used for the most serious cases where any investigation is best served by the employee not being at work eg so potential witnesses can’t be intimidated etc. Any suspension must be on full pay and be as short as is possible. Any decision to suspend does not mean that a decision has been already been taken and this should be made clear to the employee. Any pre-judgement will be deemed unfair.
5. Hold a disciplinary hearing
before any kind of disciplinary action you should hold a hearing. Notice of the hearing should be given in advance (two days is fine) in writing, any evidence should be given in advance and the employee is entitled to be accompanied by a work colleague or a Trade Union Representative, even if you don’t recognise a Trade Union, they may still be members and entitled to be accompanied. Avoid at all costs them being accompanied by friends, family, solicitors etc. if possible, have someone there yourself and get them to make notes. Once all the evidence has been heard and they have been given an opportunity to respond, adjourn the meeting to make a decision. The length of the adjournment depends on the complexity of the case. Make the decision and confirm in writing. Any dismissal should be with notice unless it is a case of Gross Misconduct (very serious offences eg stealing, fraud, fighting etc) which can be without notice.
Please be aware that there is no such thing as instant dismissal. If you dismiss without following the above, you will lose any Employment Tribunal even if it is the most obvious misdemeanour.
If you dismiss or give any level of warning, offer an appeal which should be heard by someone more senior. If this is not possible, use an external consultant.
7. Settlement Agreements
Used to be called Compromise Agreements and can be used to settle disputes and can be a quick way to dismiss someone. If an employee agrees to a settlement agreement, by signing it they are waiving their employment rights and therefore any settlement figure is likely to be larger than if you followed procedure. They must also be signed off by the employee’s solicitor who has to advise them what they are signing away. Care should be taken before offering these and advice should be sought from a HR Consultant or legal representative. Advice should also be sought in drafting one.
The frustration I have sometimes is being asked to advise a business when it is too late and the damage is done. It is frustrating when I know that an early intervention could have prevented escalation or the cost would have been significantly less. The best advice I can give is to seek advice early if you are not sure. It could save you money and time.
Further information can be found at www.acas.org.uk