Sign in
Courtesy navigation
Search
Blog posts tagged unfair dismissal
Dismissing employees - a fairer way for both sides
October 10, 2012
The recent announcement by business secretary, Vince Cable, around changes to be made to unfair dismissal processes — and putting the emphasis on out of court settlement agreements — is one that should be welcomed by employers and employees alike.
Under current legislation, employers’ hands are tied in often lengthy HR processes that are painful, expensive and embarrassing for everybody involved. The announced changes would allow employers to have an honest conversation with underperforming staff members and as a last resort, pursue an “amicable divorce” by negotiating an exit. The legal changes will deal with the small proportion of cases where all other avenues have not worked out.
Both employers and employees will benefit from the new rules and from the freedom to have an honest conversation without fear of legal consequences. Additionally, by allowing any financial agreements to be made without going to a tribunal, an employee could benefit from three months’ pay and time to find another job, with employers benefitting from a general increase in the speed of the dismissal process. The new process would also cost employers less in pay to underperforming staff and would avoid having a potentially disruptive and unhappy individual around still being paid and damaging staff morale.
A more honest approach
Indeed, it is not unheard of under the current system for some managing directors to resort to ensuring underperforming staff are made to feel unwelcome in order to get them to leave rather than go through a lengthy HR process to try and remove them from their organisation. Although not common practice, this is a risky strategy and unfair for both parties — the employee in particular.
However, despite all of this, it is key to remember that one of the hardest challenges for any manager is that of managing poor staff performance and having to make the decision to let staff go. Contrary to popular stereotypes, most managing directors care passionately about their staff and find it very difficult to take somebody’s livelihood away, only acting on it as a last resort.
The role of a business leader
Prevention and effective management is key here. Managing directors are not immune to learning new things and taking on board fresh ways of doing business. They can benefit hugely from discussing issues, such as dismissal and ways to work with staff to manage performance, in a peer-to-peer environment with other business leaders, taking advice and applying it to their business.
In the case of unfair dismissals, when a managing director thinks he/she has tried everything, there may be one other unexplored solution from a peer member that may prevent someone from losing their job. The most important role of a leader is to create a direction that is meaningful for staff. It is the role of the leader to inspire their team to do what is needed because they believe in the business. Put the minds of these leaders together and the shared impact on business can be hugely beneficial.
Bob Bradley is chairman at MD2MD, which provides leadership development peer groups for SME managing directors and other business leaders.
Sack ’em
November 08, 2010
New research shows six out of ten of us think it’s too hard to sack a rubbish worker. And with tribunal cases up two-thirds since the recession, do employees now hold the whip hand? Michael Scutt asks… is it too hard to sack employees?
Do you think the law is too difficult for employers? Unfair dismissal, redundancy and employment rights are in the news at the moment. Lord Young has already confirmed that the government is considering doubling the qualification period for unfair dismissal to two years’ continuous employment.
Winifred Robinson tackled the issue on Radio 4 recently, in “Sack ’em”, a documentary about current employment law. It was a very even-handed affair and looked at the eternal question of whether the pendulum of fairness has swung too far towards the employee. It’s well worth listening to on iPlayer.
Experts on the show made great play of the issue that justice is denied to many employers because it is cheaper to settle than fight a claim. I think they made too much of that: all litigation functions on the same basis, even where there is costs shifting from loser to winner. However, that doesn’t generally happen in the employment tribunal (ET) and because each party bears their own costs - win or lose - it does encourage more brinkmanship and spurious claims.
If you want to redress that balance, get ETs to start imposing costs orders more readily, as I have written previously. ETs have the power to award costs where one party has acted unreasonably but are reluctant to do so. If you want to discourage serial or spurious claims, introduce issue fees.
But is it too difficult to sack employees? Does the law favour employees too much? Should employers be “running scared”? In my view, no. The key is to be prepared. Problems arise where employers haven’t set up the paperwork properly. Typical issues are inadequate or non-existent contracts of employment; poorly drafted or non-existent employee handbooks; a lack of consistency in how what policies and procedures that do exist are imposed. Entrepreneurs thinking of expanding and taking on staff for the first time should get advice from an employment lawyer or an HR consultant. Do your homework and be prepared.
The Government is planning a full review of employment law which may be completed by the end of the year; we may see significant changes on the cards. My money is on the introduction of issue fees in the ET when commencing a claim: a dead cert, surely, given the age of austerity in which we live. The Court Service has been required to raise funds towards its running costs for several years now – and look at the size of some court fees you have to pay if you want to bring a claim in the County Court or the High Court.
Similarly, the rules of procedure in the ET have become more complicated over the years and have moved ever further towards the Civil Procedure Rules (CPR) that govern civil claims. This isn’t surprising given the increasing complexity of ET claims.
I think the time has come now to completely reform the system for litigating employment disputes: I would abolish the ET altogether and hand over its entire jurisdiction to the County Court. This ought to save costs but, more pertinently for lawyers, end the ongoing jurisdictional difficulties over where claims can be brought, especially in breach of contract cases.
What do you think? A step too far or a dose of common sense?
Legal resources for you and your business - employment law, personal law and more | Law Donut
Copyright © 2009-2013
