Unfair dismissal: Avoiding the tribunal pitfalls
- 9 February 2011
- From the section Business
At present, an employee usually needs to have worked for a year to qualify for protection from unfair dismissal, but the government proposes to double the qualifying period.
It has also suggested employees should more often be forced to pay a financial deposit before making a claim.
This will please employers who say too many time-wasting claims are made by sacked staff who have nothing to lose.
But the new proposals have a sting in the tail for employers.
Tribunals are likely to be given power to impose an additional fine if a case is lost, payable to the government, on top of the employee's compensation.
The government also plans to seek a contribution from users of the tribunal service to the cost of running it.
Successive governments have legislated to try to reduce frivolous employment claims, and to encourage managers and their staff to resolve their disputes without recourse to the tribunal system.
For instance, in 2004 Labour introduced statutory procedures for the handling of grievances and dismissals.
They were supposed to be simple, but the element of compulsion, coupled with fines for non-compliance, had the effect of increasing the number of claims, not reducing them.
An embarrassed government repealed the rules in 2009.
If the proposals come into force, both employers and employees will have even greater incentives to deal sensibly with claims.
So what, in practical terms, should they do?
First and foremost, they should deal with issues promptly.
This means no unnecessary delay in holding meetings, reaching decisions or confirming outcomes of meetings.
They should also behave consistently.
So an employer who sacks a person for an offence which, in a previous case, had only merited a warning will find the inconsistency hard to justify.
Employees who change their stories during the course of a disciplinary investigation are also likely to run into trouble.
Employers should comply with the Acas guidelines on good employment practice.
They need to have clear written procedures that their managers follow and their staff understand.
I once met an employer who said he made staff redundant "as a punishment" - needless to say, his defence against claims of unfair redundancy was bound to fail.
A manager dealing with apparent misconduct, poor performance or unacceptable absence needs to investigate the facts thoroughly, but speedily.
The type of investigation required varies, depending on the situation.
Where there has been misconduct, witnesses need to be interviewed, and where an employee is off sick for an unacceptably long time, the medical explanation ought to be carefully examined.
Employers should beware of jumping to conclusions or taking things for granted.
Natural justice demands that employees should have a chance to put their side of the story before any adverse decision is taken.
This is true in a case of redundancy just as much as where there is an allegation of gross misconduct.
Failure to consult redundancy candidates adequately, before dismissal notices are given, is a common and costly mistake.
A classic example of how not to do it occurred in 2003 when the UK's largest personal injury claims firm, Accident Group, sacked more than 2,000 staff, mainly by text message.
If the company had not collapsed, the exposure to compensation claims would have been massive.
From an employee's perspective, it is vital to take advantage of the opportunity to put your case while still employed.
This means preparing carefully before important meetings and mentioning anything relevant that might persuade the employer not to dismiss you or give you a warning.
Employees have a legal right to be accompanied by a colleague or trade union representative at disciplinary and grievance hearings and it makes sense to take advantage of this right.
In some serious cases, for instance where your whole livelihood is threatened, or you are at risk of deportation, you may have a right to be accompanied by a solicitor, even if your employer's procedures do not normally allow it.
An employer should offer an employee a right of appeal against dismissal, and an employee who is aggrieved by the decision should appeal, rather than assuming that it is a waste of time.
Good employers will not treat an appeal as a mere rubber-stamping exercise.
Often, managers and employees involved in a tribunal case fail to document accurately all the relevant facts.
This can prove disastrous, as memory is fallible.
When interviewing witnesses, I find that each person, however honest, has a slightly different recollection of events.
Just as employers need clear minutes of grievance, dismissal, and appeal hearings, so employees need to keep a record of unpleasant behaviour (such as bullying) which drive them to leave the job and claim constructive unfair dismissal.
Process is very important in employment tribunal cases, and employers who do not get their procedures right will incur even higher costs under the new proposals than they do at the moment.
Equally, employees who fail to comply with disciplinary warnings will find that their jobs are seriously at risk.
Unfortunately, the law of unintended consequences is as powerful as anything on the statute book.
The government's proposed changes may only keep a minority of claimants out of the tribunal, and those people may find other ways to make a claim.
So it may be that unfairly dismissed employees with less than two years' service may become tempted to claim that they are whistleblowers, or victims of discrimination.
These sorts of claims do not require any qualifying service at all, and can be time-consuming and complicated to resolve.
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