The COVID-19 pandemic has driven an increase in UK employment tribunals as companies look to reduce staff. Find out how to avoid unfair dismissal claims.
During 2020 the UK employment tribunal case backlog grew to 45,000 cases. This is not hugely surprising, as people are increasingly challenging decisions about their jobs being made redundant or being furloughed.
We have some simple tips to help your company avoid the cost, time and damage to your reputation of ending up in an employment tribunal.
1. Have effective employment documentation in place
A well-drafted employment contract, together with a comprehensive set of policies should detail the standards of performance and conduct expected of an employee.
The policies should also outline the procedure which should be followed when those standards are breached. Ensure that copies of all employees’ employment contracts are kept and that the company policies and procedures have been communicated to, and are accessible by, your staff.
2. HR & equality training
When it comes to claims of unfair dismissal, SMEs with little or no knowledge of employment law or access to an internal HR function can find themselves in trouble.
Employers need to make sure that a dismissal is thoroughly thought through beforehand and isn’t a spur of the moment retaliation to an employee’s actions.
By providing training for all staff members involved in the dismissal process, at least you'll know that the process is being conducted legally. And you could perhaps avoid a tribunal completely by ensuring all staff have equality and discrimination training in the first place!
3. Fair reasons for dismissal
Under the Employment Rights Act 1996, there are five fair reasons for dismissal:
- Conduct/misconduct .
- Statutory illegality or breach of a statutory restriction.
- Some other substantial reason.
4. Reasons for unfair dismissal
Even if you’ve acted reasonably, some reasons for dismissal are automatically classed as unfair if they fall within specific areas:
- Pregnancy, including all reasons relating to maternity.
- Family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants.
- Acting as an employee representative.
- Acting as a trade union representative.
- Acting as an occupational pension scheme trustee.
- Joining or not joining a trade union.
- Being a part-time or fixed-term employee.
- Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage.
- Compulsory retirement on the grounds of age is unlawful unfair dismissal unless you can objectively justify it - but you could be challenged at a tribunal.
5. Penalties for an unfair dismissal
If a tribunal finds that an employee has been unfairly dismissed, you might be ordered to:
- Reinstate them (give them their job back)
- Re-engage them (re-employ them in a different job)
You might also have to pay compensation, which depends on the employee’s:
- Gross weekly pay
- Length of service
- And extra compensation if you do not follow a tribunal’s order to reinstate someone.
There’s a limit on the amount a tribunal can award for unfair dismissal, apart from in cases relating to:
- Health & safety (i.e. you unfairly dismiss for action taken on health and safety grounds)
6. Follow a fair disciplinary procedure
A fair disciplinary procedure should include:
- Listening carefully to the employee.
- Carrying out a thorough investigation (including consideration of relevant documentation and speaking with witnesses, where appropriate).
- Being alert to any mitigating circumstances.
- Maintaining confidentiality wherever possible and offering the right to appeal against the decision given.
The procedure used should be compliant with statutory requirements as well as those detailed in company policy documents.
7. Take detailed notes & follow up meetings in writing
All notes should be accurate and made contemporaneously. They will help to demonstrate the fairness of the procedure used and the reasoning behind any decisions made. The follow up letter to the employee should also communicate this to them and ensure that they are aware of the outcome and any next steps.
8. Treat all employees consistently
It can be very difficult to justify any discrepancy in treatment of individual members of staff when compare to situations involving largely the same allegations, unless there are or were any mitigating circumstances present.
9. Seek employment law advice early on
Claims for unfair dismissal can be financially costly, cause reputational damage and are a drain on time and resources.
Seek advice from a professional employment law advisor as soon as possible to know where you stand and ensure your case is as robust as possible. This will ultimately save you money in the long run.
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