Within a typical HR department, you’d think the issues that arise would be fairly straightforward – but you would be wrong. Most HR professionals are passionate about finding the right people to fit into suitable positions, and allowing them to develop and grow within their organisation to benefit all parties involved. After all, employees are the biggest asset to any company.
Sometimes, however, the fit isn’t quite right and you end up with the square peg, round hole scenario. This can lead to several issues and in some cases incidents can arise where the company has to consider dismissal for a variety of reasons – not all dismissals are misconduct related.
A company may look at dismissing an employee because of performance, medical restrictions, redundancy, health and safety reasons, timekeeping, attendance, employment review or misconduct just to name a few. Whatever the reason for the dismissal, as an HR professional you must always ensure you follow the correct procedures and apply them in a fair and consistent way.
Dealing with misconduct issues can often be tricky if the methods used give rise to questions of fairness. Even though you may think the decision is a slam-dunk and the individual OBVIOUSLY did what was alleged, you still need to ensure you follow the appropriate procedures. As a business owner or HR professional the last thing you want is for a tribunal to find against you for a procedurally unfair dismissal. So what are the main risk areas?
Unfair dismissal has three main elements: fair reason, fair process and fair outcome. All three are as important as each other e.g. theft might be a fair reason and dismissal a fair outcome to that but if you have not followed fair process then it will be an unfair dismissal.
A good example is JJ Food Service Ltd v Kefil [2013] UKEAT. Mr Kefil had only received one informal warning about his management style in 14 years of service but was then subject to complaints raised by 10 employees alleging he had created a hostile and intimidating atmosphere by mistreating the staff and threatening to dismiss them. Faced with the evidence of 10 employees, Mr Kefil was dismissed for abusing his managerial position. He did not receive a written warning or any indication that he might be dismissed, verbally or otherwise. A tribunal and the Employment Appeals Tribunal (EAT) found that Mr Kefil had been unfairly dismissed because, although he had received complaints about his management style, the informal warning given didn’t state that he could be dismissed if he failed to change his ways, nor did he receive any management training to remedy his approach.
First of all don’t get caught out by assuming that employees need 2 years service in order to claim unfair dismissal. Some dismissals fall within the automatically unfair category e.g. whistle-blowing, trade union, or exercising a statutory right so you should treat them all using the fullest of procedures to avoid a claimant bringing a claim against you.
Secondly, make sure that any allegations are investigated thoroughly by someone unconnected to the incident(s) and that all avenues are exhausted. You might think that the burden of proof is lower in tribunals than in criminal cases and it is, but if you fail to investigate an incident to a high enough standard then the tribunal might find the dismissal to be unfair.
If your investigations result in the decision to pursue a disciplinary hearing then you need to make sure the employee is notified of the allegation in writing. They should have at least 48 hours advance notice of a hearing and access to the evidence, know the seriousness of the allegation and the possible outcome (if you are considering dismissal) and have the appropriate right to be accompanied at the disciplinary hearing.
All evidence needs to be presented at the disciplinary and the claimant has the opportunity to have their say. You should confirm any decision taken in writing, allowing the right of appeal and any timescale which is attached to that process.
All being well you will have made a decision based on a balanced and fair process and any resultant tribunal judge will see that, should you be unfortunate enough to end up in a tribunal scenario.
Pam Rogerson FCIPD is HR director for the ELAS Group, with 26 years’ experience in employment law and HR best practice. As a fully qualified mediator, she is able to negotiate settlements and exit strategies for clients, delivering both a commercial approach and legal best practice solution.
