Cheryl Dyer Ballard looks at the whole process of dismissing employees. Whether it is down to the sad process of redundancy, pruning dead weight, or getting shot of a big problem in the office, Cheryl explores the options.
Sooner or later, if you employ people, you will have to let someone go. It may be due to business circumstances such as dwindling sales, or disciplinary reasons such as attendance or misconduct. Whether it is fair or unfair dismissal, constructive dismissal, wrongful dismissal or even redundancy, there are policies and procedures all businesses and company CEO’s must follow; if you get it wrong, it could cost you dearly. Dismissing staff and the different types of dismissals can be confusing. The following information should help you distinguish between the reasons for firing or ‘letting go of someone’ and their validity.
Types of dismissal
Fair dismissal is lawful if an employer has proof that the employee has not followed approved code of conducts, or that the employee may no longer be capable or qualified to do the job that they have been employed to do. Maybe a restriction in the role is prohibiting the employment to continue, or other justified reasons come into play that means you can no longer justify keeping that member of staff.
As long as you as the employer have acted reasonably and can justify the reasons for dismissal and the grounds, then this qualifies as fair dismissal.
“Marge” is a lovely lady and is covering the reception whilst your usual receptionist is currently on maternity leave. Marge, has been employed on a 12 month temporary contract; she knows that once the temporary contract has come to an end, so does her employment – this dismissal is fair and reasonable. No further action needs to be taken.
An employee has been certified disabled and is now unable to do the job they were employed to do, although you have put practices in place to assist your employee, nothing has changed, unfortunately at this time there is not another position that you could offer them, in these circumstances the only fair thing you could do is to let them go.
Have you been dismissed because you’ve had a few complications with your pregnancy? Maybe there have been circumstances that are personal to you at home, for example, family problems affecting your attendance at work and your ability to do your job? Has there been a disagreement in relation to your maternity/paternity leave, which has made your employer terminate your employment?
Or, you have lost your job after you joined a union, or represented an employee as a union representative; you’ve shown how disgruntled you are because of changes within the company, and after voicing your concerns the company have decided to cease your employment.
Perhaps your religion or political beliefs cost you your job? If your employer does not have a legitimate reason to terminate your contract, then this is classed as unfair dismissal.
You may not even know that your employer has concerns about your position at work. It could be that the first time that you are made aware of any problem, is when your employer discusses the issues with you. If this is the case, you must try to keep the conversation informal – the outcome could be that there’s been some misunderstanding or a communication breakdown. Maybe a plan of action is required to rectify matters. Whatever the outcome, it is always best to ensure that you have it in writing, stating clearly what decisions were made and what was agreed. You may even be required to attend an occupational health assessment before any decision is made.
A change in business practices or management restructure can also often unbalance the workforce. Changes may have to be made within the company for the business to move forward. It is the responsibility of the boss to ensure that whatever changes are implemented, have been done so legally and fairly to their employees – if an employee feels that they have been treated unfairly, abused and exploited, then that employee could have fair grounds for constructive dismissal.
If you are an employer and you have been made aware of situations whether it be changes in employees’ contracts, discrimination between employees, even workplace bullying…you have to be proactive in solving the problem. Do something about it. Make sure you are following procedures, and above all, keep it legal. Your business needs protecting as much as you do.
Firing on the spot
You have decided that an employee has to go, and has to go now, no notice, nothing. The employer has now broken their terms of employment, they have broken their contract. Unless you as the employer have reasonable grounds to terminate this contract, your former employee could be forced to take the company to an employment tribunal with a case for wrongful dismissal.
What if an employee has threatened you or the other staff with violence, or you have noticed things seem to be disappearing from workstations or stationery areas? Maybe you cannot explain those transactions and discrepancies from accounts…but you know who can, and you know exactly what member of staff has been up to no good. You dismiss them instantly without notice or pay, due to gross misconduct: this is what is called a summary dismissal.
Imagine that the company you work for is in trouble, and the only way to get out of this trouble is to make cuts to the workforce. Unfortunately this happens all too often.
Redundancy is common, especially in this day and age. It can happen to all walks of life. There are several ways of fairly deciding who should go and why. ‘Last In First Out’ is the justification used for letting go of a long standing employee who is maybe close to their retirement age. Above all, redundancies have to be a fair process, and a redundancy period has to be put into place.
A few years ago in the school where I worked, redundancies were announced, due to a drop in student numbers and a subject becoming unpopular. This particular department was now overstaffed. One teacher’s course was effectively cancelled. Unfortunately there was not a position within the school that this teacher could take, therefore she left under a cloud. It’s a sad situation when a teacher is made redundant, especially when we’re being told continually that the country is short of teaching staff. But it does happen.
Were you aware that it is automatically unfair to dismiss a member of staff that has taken part in lawful industrial action (striking)? The general rule is that if you are going to dismiss a member of staff, you must ensure that you are doing it reasonably, fairly and are following the correct disciplinary and dismissal process. Above all, it must be legal and fair.
If the dismissal does end up at a tribunal, all the facts need to be clear. Investigations must be undertaken, correct procedures need to be followed. And for that, everything needs to be recorded officially.
Has the employee received both verbal and written warnings? Does the employee understand the reasons? Have they been given the chance to be heard? Has the employee attended a disciplinary hearing? Was that employee given the chance to have representation with them, such as a union representative or senior member of staff?
If the tribunal goes against you as an employer, you could be ordered to pay compensation, and may even be ordered to reinstate your ex-employee in the same capacity, or find them an alternative placement within the company.
If you are ordered to pay compensation, the amount the employee would receive would be dependent on their history with the company, such as their age, salary and length of service.
Employees however are unable to make any claim for unfair dismissal, unless the have worked for a qualifying period. If an employee started before 6 April 2012, they would be able to claim until after their first year of employment, however if they started after 6 April 2012, they would not be able to claim until two years of employment.
Extra compensation could be paid if the employer does not follow the tribunals order. Fortunately, or unfortunately there is a limit to the amount that a company has to pay for unfair dismissal cases, except for cases relating to health and safety, or whistleblowing (where an employee feels it is in the public interest to share confidential files or information).
Although tribunals are readily available for employees, there are a group of individuals who are unable to claim for unfair dismissal. These include the self-employed, independent contractors and members of the armed forces.
The bottom line
So to conclude, if you have an employee that you feel may not be right for your business, it could be that they haven’t settled in or causes issues for other members of staff, or perhaps their attendance and work ethos is poor. Perhaps something else isn’t quite right, something which tells you that something needs to change. Speak to them, open up those lines of communication and help them in any way you feel you can
If you have tried to help them, and you have covered all the important areas of concern and it’s still not going to work, let them go. Maybe it will be the best thing that’s ever happened to them or your business…or not. Who said it was ever going to be easy?