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All Just just about ClaimsStatutory Dismissal and Disciplinary Procedures - As simple as 1, 2, 3?
by:
Dave Offen
The DTI proclaimed the introduction of the statutory procedures in Gregorian calendar month 2004 as being ‘as simple as 1,2,3.’ The procedures were intended to impose minimum standards once
dealing with dismissal and disciplinary matters and to encourage employers and employees to resolve their disputes in the workplace. Our experience of the procedures over the last 8 months suggests that they are far from simple. We have set out below several of the pitfalls of the new regime.
“As long as you follow the statutory procedure your employees cannot claim unfair dismissal?”
Wrong! Employers are now janus-faced with additional procedural hurdles that they must obey
with in order to avoid a claim not only of unfair dismissal, but that it was mechanically
unfair. That is not the end of the matter - the normal principles of fairness continue to apply. Keeping to the procedures makes not necessarily protect the leader
against an unfair dismissal claim.
Does the statutory procedure only apply to disciplinary dismissals?
No. The new procedure applies to most situations wherever
dismissal strength
be the outcome (with a limited number of exceptions). Employers who do an worker
redundant (other than under a collective redundancy) or look to dismiss an worker
for lack of capability or following a business re-organisation wish need to obey
with the statutory procedure. The procedure even as applies wherever
an leader
decides not to renew a fixed term contract as this is deemed to be a dismissal by law. Whilst many an employers are used to having a procedure to deal with disciplinary matters, they are often not used to following any sort of procedure for else types of dismissal. This is wherever
an unguarded
leader
can get caught out.
What do you have to do before dismissing an worker
for redundancy?
The statutory procedure makes not apply to collective redundancy situations, that is wherever
20 or much redundancies are ready-made inside
a 90 day period. However, wherever
less than 20 employees are to be ready-made redundant, an leader
must set out in writing the circumstances that have led them to contemplate dismissing employees for redundancy. In this letter, the leader
wish need to set out the grounds for the decision to do redundancies and include details of the selection criteria used or projected and any alternative positions. After the worker
has had a reasonable possibleness
to consider the letter this should be followed by a meeting with the employee. After the meeting the leader
must confirm their decision and, if they are dismissed, inform the worker
of their right to appeal.
There is several debate just about whether employees have the right to be attended
at redundancy consultation meetings. Recently, the Employment Appeal Judicature
distinct in Taskforce (Finishing and Handling) Limited –v- Love that the right to be attended
makes not apply to redundancy meetings. However, the Employment Act 2002 provides that meetings must be conducted in a manner that enables several leader
and worker
to explain their cases. It is argued by several that this includes the right to be accompanied. We wish need further case law to clarify this.
What just about warnings?
Another question we are oft-times asked is what an leader
should do just about warnings. Warnings are outside the remit of the statutory disciplinary procedure. However, the procedure followed in relation to warnings is likely to be really relevant whenever an Employment Judicature
considers a claim for unfair dismissal. The better proposal
is for employers to have given a series of warnings prior to dismissal in all but the most serious cases. Wherever
an leader
is unsure of the likely outcome of a disciplinary hearing but one option could be dismissal, they wish need to follow the statutory disciplinary procedure even as if, in the end, only a warning is given.
Do you need to follow the procedure once
dismissing an worker
with less than one year’s service?
Dismissing employees with less than one year’s service without following the statutory procedure wish not give them the right to claim automatic unfair dismissal as they do not have the relevant period of consecutive service. Further, failure to follow the statutory procedure makes not by itself give rise to a claim in respect of which compensation can be awarded. Many an employers have therefore unnoticed
the statutory procedure once
dismissing such employees. However, if the worker
has or strength
have else claims arising from their dismissal which do not require a year’s service to bring them, such as for race, sex or handicap discrimination or unlawful deduction from wages, the leader
should ensure that they do follow the statutory procedure. Further, if the worker
is flourishing in one of the else claims and can show that the leader
was at fault in not following the statutory procedure, the Employment Judicature
wish increase the level of compensation paid to the worker
by between 10 and 50 per cent. As compensation in discrimination claims is not capped, the cost of failing to follow the statutory procedure in such cases could be considerable. In view of this, unless an leader
can be certain that the worker
has no else claims, we would-be advise that they follow the statutory procedure once
dismissing employees with less than one year’s service.
Many employers reviewed their disciplinary procedures in Gregorian calendar month 2004 but did not look at their else dismissal procedures. As the 1st day of remembrance of the statutory dismissal and disciplinary procedure approaches, employers should ensure that they take on board its full implications. Far from being as simple as 1,2,3, the statutory procedure is often confusing and difficult to apply.
This bulletin is prepared and publicized
by Cripps Harries Hall for the general interest and benefit of readers. It is not intended to be a definitive analysis of the law or else issues relating to the subject matter of each article. Proposal
should be taken on specific issues before you take or decide not to take any action. The practice is regulated by the Law Society.
Just just about the author:
For further information contact:
Cripps Harries Hall LLP
Telephone: 01892 515121
Website: www.crippslaw.com
Email: info@crippslaw.com
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