It’s a difficult situation that many business leaders face – and can potentially have legal complications if not done properly. People Director Tara Lawson outlines the steps you need to take to make sure you’re staying within the law.
There are many reasons for needing to dismiss a member of your team, ranging from persistent absenteeism to gross misconduct. But there are two factors which significantly affect the way you deal with it:
Length of service
If someone has been employed with you for less than two years, legally there is very little process you are obliged to go through. ‘That is always the first question I ask,’ says Tara Lawson. ‘There is a lot less employment law protection for those with less than two years of service.’
However, regardless of how long they’ve been with you, people are still protected by discrimination rights, which are covered under the Equality Act as follows:
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
If an employee can prove that they were discriminated against under one of those nine characteristics, then a discrimination case could be brought against the company. It is worth getting an HR expert in to advise on this. ‘Make sure your reasoning is sound before you proceed and be careful that nothing could be construed to be discriminatory,’ Tara advises.
Discriminatory claims can be costly to the employer if successful. An unfair dismissal claim can be up to £86,444 but if it’s classed as discrimination, that cap comes off and there is no limit.
The disciplinary process for an employee with more than two years of service or who potentially falls under a protected characteristic
If there’s an ongoing issue such as persistent absenteeism, lateness or bad attitude, there are several steps that should be taken before a disciplinary hearing can take place. An informal warning should be given before any formal disciplinary process is started. ‘This can be confusing,’ says Tara. ‘Sometimes managers think an informal warning, when you initially say I’m not happy with you” constitutes a “verbal warning” but it doesn’t. Informal warnings and verbal warnings are two separate parts to the process.’
The informal warning is where you inform them of the conduct or area of performance you are unhappy with. It does not need prior warning to this meeting or an investigation but you should prepare targets for them to work on and inform them that if they don’t reach the desired standard, the process may escalate to a disciplinary procedure.
This is the first formal step in a disciplinary procedure. A verbal warning is given following a disciplinary hearing, and therefore requires all of the normal procedure that a hearing warrants. This should entail a formal invitation, hearing, adjournment and a letter confirming which level of warning has been given. ‘It’s important to follow a verbal warning up with confirmation in writing,’ says Tara. ‘Otherwise, you could be accused of not complying with employment law.’
The next step in the process is a written warning. However, for more serious offences such as negligence or a grave error, employers could go straight to a final written or a dismissal depending on the severity of the mistake.
Carry out a proper investigation before starting the disciplinary procedure so you are in possession of the full facts. ‘This stuff often gets missed out,’ says Tara. ‘Talk to their colleagues, you might need to look at emails or CCTV footage, speak to witnesses or consult a customer if appropriate.’
Depending on what the investigation brings out, you should invite them to a disciplinary hearing, giving 48 hours notice. They have the right to bring someone along such as a colleague or a trade union representative.
The manager carrying out the investigation should not be the person conducting the disciplinary hearing. This person reviews all the investigation notes and gives the employee the chance put forward their case. After that the hearing is adjourned; unless the employee raises points that need further investigation, a decision can be made within hours.
If discrimination or two years of service don’t apply
If there has been less than two years of service and there are no protected characteristics involved, the above process is not legally required for a dismissal. However, Tara advises hearing their side of the story before acting. ‘I would suggest a two-way conversation,’ she says. ‘You might learn something you didn’t know before; perhaps that person wasn’t supported properly. But if there’s no new information I’d advise making a decision by the end of the day.’
Nobody likes having to dismiss a member of their team, and Tara emphasises the importance of learning from the experience. ‘Ultimately, it’s the company that made the wrong selection or didn’t support that person properly,’ she says. ‘There is a learning point to be had from every dismissal that can prevent it happening again.’
If you need help dealing with a dismissal, call our experienced and professional team for advice on 0808 164 5826.
Tara Lawson, People Director