What are common mistakes made when dismissing employees?

There are a number of common mistakes made by employers which can lead to a finding of unfair dismissal by an employment tribunal. Whilst this may not lead to a significant award of compensation if it can be argued that the employer would have been entitled to dismiss in any even, it can still lead to unnecessary time and costs being incurred. Most mistakes are down to ignorance of the law or lack of planning and can easily be avoided.

1. Ensure that a disciplinary hearing is held. Do not dismiss without holding a disciplinary hearing.
2. Carry out an investigation into what happened prior to coming to the decision to discipline in all but the most obvious of cases.
3. Write to the employee and tell them what the issue is. Tell them whether dismissal is a possible sanction.
4. Remind the employee of his or her right to be accompanied by a colleague or trade union official.
5. Provide the employee with the evidence that has been gathered as a result of the investigation.
6. Ensure that the employee has sufficient notice of the hearing. At least one or two working days is ideal.
7. Make sure that the person conducting the disciplinary hearing was not involved in the investigation.
8. Listen to all of the evidence and allow the employee to present their case.
9. Take time in coming to any decision to dismiss. There is no need to rush any decision.
10. If the employee fails to attend on the first occasion adjourn matters. You can usually proceed on the second occasion subject to certain provisions.
11. Inform the employee in writing of the reason for dismissal and any findings made. If, for example, the employer relies upon a loss of trust and confidence state why such a loss has arisen.
12. Always remind the employee of their right to appeal the decision and ensure that the appeal is heard by a more senior manager.
13. Be consistent. If one employee has been dismissed for a certain act whereas a colleague has not then there should be good reasons for this.

In summary

• Carefully plan how you intend to deal with any disciplinary issue.
• Be aware of your own procedures and follow them.If you have no procedures then prepare some.
• If in doubt always seek legal advice before dismissing.

This blog sets out our thoughts on avoiding unfair dismissal claims. It is not specific legal advice on any particular set of facts and should not be taken as such. If in doubt seek legal advice. We are able to provide a HR system to employers that will provide you with all of the assistance that you need in dealing with staffing issues. Feel free to call us on 01582 439795. 

How to manage sickness absence in the workplace

Sickness absence can vary significantly from case to case. It can cover anything from an employee who suffers a broken leg to an employee who appears to take a lot of Mondays off work. How the matter is dealt with will very much depend upon the type of case.

Dealing with periods of short term absence
If an employee is absent for a number of occasions on short term sickness then the employer needs to consider the absence level of the employee and whether there is any pattern to the same. If the same day of the week is taken off or a lot of sickness happens before or after bank holiday then this suggests that there is likely to be an issue.

Investigating the matter and the disciplinary process
In such a case, the employer needs to follow the disciplinary process and firstly investigate the matter to see if there is a case to answer. This will involve the employee being called to a meeting to explain why he is absent on many Mondays. If there is no satisfactory explanation then the matter will proceed to a disciplinary hearing.

If the disciplinary hearing finds that the absences are not acceptable then the employee should receive a warning. It will not normally be justified to dismiss without previous warning having been given for similar conduct. Always remember the right of appeal.

How to gain improvement in attendance
The outcome letter should state that the level of sickness is not acceptable and that improvement is required. However, this in itself is not enough. If an employee has 20 days off work sick and is warned to improve then has 19 days off sick he cannot be disciplined again as he has in fact improved as requested. The employer needs to calculate the average days taken off sick by the rest of the workforce and come to a conclusion of what is acceptable.

Does this mean that any further absence over and above this level will lead to dismissal
Normally an employee will need to be on a final written warning to be dismissed. However, even if this is the case, there may be circumstances where it is not appropriate to dismiss such as cases of genuine and accepted illness.

Dealing with periods of long term absence
If long term absence is an issue, the employer may wish to dismiss on the basis of capability in that the employee cannot carry out his or her role and that, as such the contract is frustrated (can no longer be effective).

How should the matter proceed
If an employee is on long term sickness then the employee needs firstly to carry out an investigation into the absence. This investigation should consider:

• the nature of the illness and the effect on the employee to carry out their role
• when or if the employee is likely to be able to return to work
• the work record of the employee and how other cases have been dealt with
• whether any reasonable adjustments to the role can be made or if there is an alternative role 

Is medical evidence required

Medical evidence should always be requested in such cases. The doctor can be asked to consider the above issues. It is always advisable to contact an independent doctor rather than the employee's own doctor. 

Does the employee have to consent to a medical report

The employee does not have to consent to a report being prepared and, if they see the report, they can request that it is not shown to the employer. They should be made aware that if there is no report then the employer will proceed on the evidence available.

What if we decide to proceed

The employer should then write to the employee stating that a meeting will take place to consider whether the employee is capable of continuing in their role. They should be provided with all of the evidence available and be reminded of their right to be accompanied to the meeting by a work colleague or union official.

Making the decision
The decision is a difficult one as it may involve terminating the employment of an otherwise helpful employee who through no fault of his or her own cannot attend work. The key issue here is how long the absence will last for and whether the business can cope with the absence of the employee in question. The more the impact upon the business and the more difficult the absence is for the employer to deal with the easier it will be to justify dismissal.
As with any dismissal there is a right of appeal and the employee should be notified of the reason in writing and how the decision was reached.

Summary

• For short term sickness give a chance to improve to agreed levels
• For long term sickness try to obtain medical evidence and consider the impact upon the company 
• Follow the disciplinary and appeals process in either case  
• Act reasoanbly and be prepared to justify any decision

This blog is our thoughts on sickness absence. It is not meant as specific advice and should not be taken as such. It should not be applied to any particular set of facts. If in doubt always seek legal advice. We are experts in employment law and HR issues and can be contacted on 01582 439795. 

Do we need to provide a written contract of employment?

All employees have a contract of employment. Verbal contracts have the same legal status as a written contract but are more difficult to prove. The terms of the contract can be express or implied and can be provided by statute.

An express term is something that is usually in writing but can also be verbally agreed. This is something such as the hourly or weekly rate of pay. An implied term is something that is not in the contract that is written or verbally agreed but still exists. For example, it may be an implied term of the contract that the employer provides the employee with free tea, coffee and biscuits. Another implied term is that of mutual trust and confidence. This means that the parties will act reasonably towards one another.

When should a contract of employment be issued?
It is always safer to issue written particulars of employment. In doing so there is certainty as to what has been agreed and what each party can expect of the other. An employee is entitled to receive a written statement of their particulars of employment within two months of commencement of employment.

What should this contain?

• the name and address of each party
• the date of employment commencing and details of continuous employment
• rate and frequency of pay
• hours of work
• holidays
• sick pay
• pensions
• job title or description
• place of work and mobility clause
• length of notice required
• if fixed term contract date employment will cease 
• details of any collective agreement
• details of work outside UK
• disciplinary and grievance issues

What else can the contract contain?

The contract can contain any other issues that the parties agree and view as being right to include in the contract. The employer may wish to include a policy on equal opportunities, what it views as gross misconduct or indeed policies designed to protect the company upon termination such as restrictive covenants. These can prevent staff being solicited and customers being approached and poached by a disgruntled employee. It is also possible to prevent an employee from working within a certain geographical area.

What are the minimum implied terms of employment?

Mutual trust and confidence is key. Any employee and employer must act fairly towards one another. The parties must act in good faith and the parties cannot act unreasonably. The employee will be expected not to disclose trade secrets, take care of equipment and obey reasonable orders.   

Summary

• Whilst a contract of employment should always be in writing it can be as brief or as thorough as is required by the particular role.
• Always provide the contract within the relevant time allowed.
• Review the contract so as to comply with legislation changes. 
• Review the contract if the role changes significantly.
• Take great care when trying to vary the terms of the contract if the employee is not in agreement. 

This article is intended to provide our thoughts on contracts of employment. It is not meant to be specific advice on any particular employment matter. If in doubt always seek legal advice. We are experienced in drafting contracts of employment and can be contacted on 01582 439795.

Do we need a staff handbook?

Staff handbook are an addition to the contract of employment and provide further guidance to employees as to their rights and entitlements and, more importantly, what is expected of them.

Do all employers need to provide a staff handbook?
Firstly, there is no legal requirement to provide a staff handbook. Whether or not one is provided will very much depend upon the size of the employer and the available resources. In our view, a window cleaner who employs his friend's 16 year old son does not need to spend time on a staff handbook. His employee will be told of his basic rights in the contract of employment and can ask about anything else. The relationship between employer and employee will be relatively informal. If the employer is larger and has a number of staff then a handbook can assist both employer and employee.

What should a staff handbook contain?
A handbook can contain literally anything concerning employment. It is a supplement to the contract of employment and can contain guidance and policies. For example, the contract of employment will set out holiday entitlement. the staff handbook will explain who a request should be directed to, what notice is required and how much holiday can be taken at any one time. Staff handbooks can also contain policies in relation to training staff and issues such as discrimination and use of social media.

What are the advantages of having a staff handbook?
The advantages are that the handbook can be kept up to date with current legislation and is easier to update than a contract of employment which will need to be issued, signed and dated. It can provide guidance and certainty and remind the parties to the contract of their obligations to one another. The staff handbook will also say to an employee that their employer takes their rights and obligations to their staff seriously and thus sends a positive message. Any employment tribunal will be happier if an employer produces a staff handbook.

Is there any need for caution?
The only word of caution is that the staff handbook should spell out that it is non-contractual and is for guidance only. In this way, an employer should not be placed in a position whereby they are held liable for a failure to follow the contents of the handbook in any proceedings.

Key points

• Ensure that the handbook is prepared in accordance with present legislation and is consistent with the contents of the contract of employment.
• Make it clear that the contents of the handbook are non-contractual.
• Keep the handbook up to date with changes in employment legislation.
• Provide a copy to staff or have the handbook accessible. 
• Make staff aware of any changes to the handbook.                          

This article has been written to provide general comment upon the issue of staff handbooks. It is not meant as specific legal advice. If in doubt, advice should be sought. We are experienced in assisting employers in providing documents, policies and contracts and can be contacted on 01582 439795.

   

What does ACAS conciliation mean for employers

With effect from early April, employees and employers will be expected to address the issue of ACAS conciliation in employment tribunal claims. As of 6 May 2014, claims will not be accepted without a conciliation certificate.

What does this mean for me as an employer?
If you are contacted by ACAS it means that an employee or previous employee is considering taking you to a tribunal. If the person is still an employee then the matter can be dealt with as a grievance if this has not already taken place. There is therefore an opportunity to resolve the matter. If the employee has left then it is more an issue of whether the employer wishes to settle the matter financially without the case proceeding further.

How long does conciliation last?
Conciliation lasts for one calendar month and, can be extended by fourteen days. It pauses the three month time limit in which a person can submit a claim. However, if the parties or one party does not wish to take part then the certificate will be issued and the process ends.

Do I have to take part?
Absolutely not. The system is voluntary and neither party is obliged to take part. However, the employee cannot pursue any claim unless he has made a referral to ACAS and obtained a certificate.

Can my solicitor deal with the matter for me?
Yes this is allowed. As before, your solicitor can negotiate with ACAS on your behalf. There are certain advantages to this as a solicitor will be more experienced and will be in a better position to assess whether the claim should be settled and, if so, for how much.

What should I do if contacted by ACAS?
This very much depends upon whether you feel that you have a case and whether you have the stomach for an employment tribunal claim. Cases that are settled early one can be done so with confidentiality clauses and obviously save time and legal fees. However, some employers if they feel that they are in the right will not want to settle. The best advice is to seek legal advice at an early stage. It may be that an hour spent talking over matters with a legal adviser will give you a far better idea of the risks involved, the costs involved and the chances of defending the claims.  

What are the key issues to conciliation?

• Obtain some initial legal advice on the merits of the potential claim.
• Try to establish if the employee has managed to find alternative employment as this can substantially affect what the claim is worth.
• Listen to what the ACAS representative has to say and consider the arguments put forward by the potential claimant. 
• Put forward your own case politely but with conviction.
• Make a decision to settle or carry on. Even if you do carry on there is nothing to prevent settlement at a later date.

This article gives our thoughts on ACAS conciliation and how matters may work. It is not meant to be specific legal advice on any particular set of facts. If in doubt legal advice should be sought. We have considerable experience in dealing with employment tribunal claims and can be contacted on 01582 439795.