As a business owner, the thought of dismissing employees may fill you with fear.
As such, you may be sticking with serial under-performers or those with consistent misconduct issues for far too long (to the detriment of your business) for fear of making that tough decision.
If this sounds familiar to you, this article will address some of these fears and put some context around this area so that you may reduce risks when it comes to staff dismissals.
How should I approach an employee with poor performance or misconduct issues?
Whilst swift entrepreneurial decisiveness can benefit when it comes to the cut and thrust of commercial deal-making, in the world of employment law, it isn’t usually a good idea to act in haste.
A good employer keeps working relationships with their employees under regular review in both parties’ interests, including their employees’ performance and morale levels, career development options, workplace conduct and everything in between.
As such, a good employer is likely to spot poor performance or misconduct issues early, allowing an opportunity to step in and discuss the issues (and explore any extenuating circumstances) on an informal basis before they develop any further. This should be done in a calm, fair and positive manner.
An initial informal approach may help the employee turn a corner and improve their conduct/performance without requiring formal action.
If this doesn’t prove possible, or if the underlying issues are simply too severe, then the informal action is likely to be a gateway towards a more formal capability or conduct process, which will arrive at a conclusion.
Where the outcome is found against the employee on a first occasion, the appropriate sanction is usually a first written warning unless gross misconduct is found.
If further misconduct or poor performance leads to a similar outcome, the appropriate sanction would likely be a final written warning. On the third occasion, within a set timeframe, it would typically lead to dismissal.
Where the issue relates to a stand-alone incident (or series of incidents) that gives rise to a gross misconduct finding, it may be that dismissal is the appropriate outcome.
What are some of the key features of a fair disciplinary process?
A disciplinary process should be fair both in terms of the procedure followed but also in terms of the decision itself.
You should work to the ACAS guidance with regards to the procedure, ensuring:
- A fair investigation is carried out
- The employee has reasonable advance written notice of the disciplinary hearing (setting out all the details required)
- The employee is allowed to bring a colleague or trade union representative (as applicable) with them if they choose to do so
At the disciplinary hearing, you should ensure that you give the employee a good opportunity to state their case and be heard.
You should allow them to comment on any evidence or findings you present to them.
Following the hearing, you should write to the employee explaining the outcome of the process, allowing them the opportunity to appeal the decision.
If you follow a fair and transparent process and arrive at a fair and reasonable decision based upon all the evidence available, then it is far less likely that an Employment Tribunal would find the dismissal unfair if the employee later challenged it.
Is there another route available to dismiss an employee?
In certain situations, it may be possible to negotiate an agreed financial package with the employee concerned to terminate their employment using a ‘Settlement Agreement’.
This type of agreement will typically be used when a dispute has arisen between the parties or when an employee is considering bringing a claim.
The effect of the Settlement Agreement is to prevent the employee from bringing any claims against their employer. As the employee is signing away their employment rights, it is a condition of such an agreement coming into force that the employee receives independent legal advice regarding its terms and effect. LawBite has a free Settlement Agreement template that you can download and edit to suit your circumstances.
