Undoubtedly, one of the most difficult decisions to make as an employer is to relieve an employee of their duties. Dismissal is regarded, quite rightly, as the last resort when a member of staff is not performing to the level expected, and every effort should be made to ensure they have a fair opportunity to up their game before the proverbial axe is swung.
“From a human resources perspective, we obviously would want to make sure, depending on the scenario, that it was in fact the right thing to do to sack the person to start with,” says Kerry McGowan, co-founder of Hertfordshire-based consultancy The HR Specialists.
“Has the employer done everything they can to deal with any situation before it gets to that point?”
The government has done its bit to try to protect employers. It extended, from one year to two, the period of time somebody must have been employed by a company to be eligible to make an unfair dismissal claim. And from this summer, it will cost £250 to bring a claim, plus a further £950 if it goes to court – there is currently no charge.
Nevertheless, employers should not rely solely on the powers that be in such matters. There is a process that should reasonably be followed, under ACAS guidelines, to protect employees from what they may deem a discriminatory dismissal. Equally it ensures that the employer has acted in a fair and diligent manner so as to avoid the potential for an unfair dismissal claim or, should a claim still be brought, bolster their chance of success.
“It isn’t rocket science in a sense but there are steps and procedures that you should take,” explains Beth Baird, head of the employment team at Essex-based law firm Quality Solicitors FJG.
“The advice that I would give to employers is to understand that you are in it for the long haul, get the process right, make sure that you document everything and that you have proper records and understand that it is not going to be a simple process. It is about transparency and fairness.”
Key to a capability-related dismissal, says Baird, is what she calls a Performance Improvement Plan (PIP), which gives the employee the necessary time and opportunity to turn things in their favour.
Depending on the specific company, the amount of PIPs will vary, but it is imperative that any warnings given, verbal or written, are preceded by a formal disciplinary hearing where the employee has the right to representation.
“It is a very long process to do capability dismissal fairly but what employers have to be wary of is not setting targets that could be seen as unachievable, because that is just performance-managing somebody out of the business,” Baird continues.
“There needs to be some proper contact with the employee and assistance given.If at the end of the process, you finally get onto the final written warning stage, and they still haven’t achieved the targets you have set in terms of their performance, then you would dismiss with notice – it wouldn’t be a summary dismissal.
“As you can imagine, that takes a lot of time and effort, it is pretty miserable for everybody concerned, it is not great for morale. Often, employees will suffer stress and go off sick during the process, so it has to be managed very carefully.”
Dismissals related to conduct and, in particular, gross misconduct are a slightly different kettle of fish – however, the need to abide by due process is just as paramount.
“If it is something as extreme as violence in the workplace, it will generally result in an immediate suspension, but there still has to be an investigation and a hearing,” adds Baird. “You need to follow due process, as difficult as that may sometimes be when tempers are fraying and management time is being eroded.”
It is also not unusual for a financial gesture to be made to the employee, should the employer deem it necessary.
“Most redundancies these days, even when they are non-contentious, end up with a compromise agreement at the end of them, so that everybody knows where they stand,” Baird clarifies.
“There is the option to say, ‘You are entitled to two months’ notice but what we will do is pay you the two months’ notice and give you an extra month’s money as a compensatory payment.’”
Aside from the need to eliminate any legal repercussions, keeping the rest of your team on-board is an essential component of the dismissal process.
While the principal of confidentiality must be upheld at all times, there are ways of striking the necessary balance between reassurances and underlining your position.
“You need to re-emphasise your standards and expectations of your staff so that when something has happened, and it is not the way you want things to happen in future, you can communicate to your staff what you do expect and re-emphasise that, if people don’t do that, it could be a disciplinary matter,” says McGowan.
“So you don’t specifically say, ‘I have disciplined this person for this thing’, but you make it absolutely clear what you expect from your staff going forward. That way you are not crossing the line in terms of confidentiality but you are being very clear what is expected and what you expect from your employees.”
In an ideal world, an employer should never have to negotiate this tricky path, having made their initial appointment following an equally diligent and transparent process. But if the improbable does occur, it pays to do things properly.