Unfortunately, due to the “credit crunch” and the economic downturn, many employers are laying off staff, often under the label of redundancy. We have written another article dealing specifically with redundancy on this website
For a dismissal to be fair, it must be for a fair reason, e.g. gross misconduct, ill health or incapability, redundancy or “some other substantial reason” (basically a catch all for dismissals that don’t fall into other categories). Next, a fair procedure must have been followed and dismissal must be a reasonable response.
At the moment, employers are required to follow a minimum procedure set down by law when dismissing someone. If they don’t follow the minimum procedure they are likely to face a decision of automatic unfair dismissal in the Employment Tribunal. The minimum procedures are:
- The employer must write to the employee inviting them to a disciplinary meeting giving the employee sufficient advance warning.
- The employee should be given the opportunity to invite a colleague or a recognised trade union official to the meeting.
- After the meeting the employer must notify the employee of the outcome and give the employee the right of appeal.
- Again the employee should be given the right to be accompanied at an appeal meeting.
- The employer notifies the employee of the outcome of the appeal.
Even if the procedures are followed to the letter that will not necessarily make the dismissal fair. For example, the “offence” may be very minor which would not justify dismissal. Also, the employer may seek to rely on “spent” warnings which may not be appropriate. The employer should also have conducted a proper investigation into the allegations.
Employers will sometimes try to settle disputes that could give rise to an unfair dismissal claim by which an employee signs what is known as a Compromise Agreement in return for a lump sum payment. The effect of signing a Compromise Agreement is to restrict the employee from bringing claims against the employer in the future.
Claims for unfair dismissal must be submitted to the Employment Tribunal within 3 months of the last day of employment.
Pickworths is based in St Albans and Hemel Hempstead and has a specialist employment department advising on issues such as redundancies and compromise agreements. If you require advice as an employer or an employee on dismissal procedure or compromise agreements then please contact either Mike Powell mike.powell@pickworths.co.uk or Ian Tottman ian.tottman@pickworths.co.uk either on 01442 212170 (Hemel Hempstead) or 01727 844511 (St Albans). |
