Discipline
Probably the most contentious issue relating to new employees is the extent to which they are to be given the ‘benefit’ of the full disciplinary procedure.
We advise our clients to retain the flexibility to follow the spirit if not the letter of the disciplinary procedure during the first year of employment. This is to avoid getting bogged down in lengthy procedures when employers have the right to dismiss without any risk of an unfair dismissal claim. If the contract allows this flexibility then the risk of a breach of contract claim is substantially reduced. Dismissal
The statutory requirement was a 3 step process; invite to a meeting giving reasons, hold a meeting to consider and give the right to appeal. Many employers believe that since the repeal of the widely hated Regulations and the replacement by a simplified ACAS Code of Practice, there is no need to bother during the first year of employment. We strongly disagree and advise our clients to follow the ACAS Code in respect of Dismissals for all employees including those with less than a year’s service. Why?
The first reason – if you have not followed the ACAS Code and the employee succeeds in making a claim of discrimination or other prescribed reason for dismissal then the award would be increased by up to 25%. The risk of a discrimination claim may appear remote, but it is amazing how creative people can be when advised that they cannot bring an unfair dismissal claim because they have less than one year’s service.
People may try to argue that the real reason for their dismissal is due to issues of discrimination, having raised a health & safety concern or in some way they attempted to assert their statutory rights. This allows them to submit a claim as the one year service rule does not apply in these situations.
The second reason – the issue of fairness and natural justice. You may not want to admit it, but it is possible that holding a meeting/appeal may bring out a good explanation for their performance/conduct and lead to a fairer result. And don’t forget, if something like discrimination is being alleged, then it is better to deal with it or at least understand it at an early stage rather than through the Tribunal process.
One word of warning – do not prejudge the outcome of a meeting. Not only is it unfair, it is dangerous if it can be shown to a Tribunal that the process was a sham. Go in with a genuinely open mind and present to the employee your concerns and allow them the opportunity to address what you have had to say.
Once matters have been exhausted, adjourn the meeting to reflect on what was said. If with hindsight what they had to say was fair, perhaps they had not been given sufficient training and support, then you may decide to extend the probationary period or advise them that they have one or two months to improve. If you are not convinced then inform them of that fact and terminate their employment.
Remember you should always confirm your decision in writing and offer them the right of appeal (see below).
Grievances and Accompaniment
Employees can raise grievances at any time and this right cannot be restricted to employees over one year’s service. It is important to deal with all grievances by following your procedure, and this will include the right of appeal against the decision to dismiss someone with less that a year’s service.
The right to be accompanied is not dependent on service, so make sure that employees are aware that they may be accompanied at a grievance or disciplinary meeting. This can either be a colleague or accredited Trade Unions official, and it is a free standing right.
Remember:
* You should allow all employees some access to your Disciplinary procedures, Dismissal should not be the only option in the first 12 months
* Contracts should specifically allow early termination to protect you
* There is no protection from proven discrimination on any grounds
* If you follow the right procedure and keep performance records, spurious claims are less likely later
* Everyone should have the right of appeal
* Everyone must be allowed to be accompanied
* Hearings should be fair and not pre-judged
* Confirm decisions in writing after (not before) the event.
Close to the edge
3 days before the end of the year and you decide to dismiss. Our nightmare, but I have to say, your problem. Why have you left it so late?
The bad news is that a year is at best 51 weeks in unfair dismissal terms! You have to leave some time for the formalities to take place, and that will automatically take the last minute dismissal over into 12 months and you will have to justify a whole host of reasons for the dismissal. And you will have really upset and emotional employee on your hands, and they are always the most likely to litigate.
There is only one thing worse than getting a call about dismissing someone at 53 weeks because the client forgot or miscalculated, and that is a call asking if it is okay to dismiss in the final few days of the year.
If an employee is dismissed in the 11th month then employers have to be very careful to ensure that nothing they do could be construed as giving sufficient service to achieve 12 months service. With more senior people on say 3 months notice then care need to be exercised after 9 months.
As ever, the way to avoid much of this worry is to have robust system for monitoring performance and not letting sub-standard employee get to anywhere near the 12 month mark. Take robust and firm action early and you will not get into difficulties. A formal review at 9 months should address most issues. If people are not really much good at 9 months then it is unlikely that any extra time will help.
To make absolutely sure that such an employee does not come close to the year’s service, if you decide to terminate after 9 months then it would be best to do so with immediate effect and give them pay in lieu of notice.
Remember:
* A year is at best 51 weeks
* If employees have long notice periods it may be much shorter
* Monitor continuously and act early when you know things are not right
* People get even more upset if you leave things to the last possible moment and litigation is more likely, and may be more difficult to defend.
* Keep records
Conclusion
Part of good HR is recruiting successfully – you can really improve your recruiting success by making sure the initial stages of your new starters careers goes well, is properly monitored and their concerns and insecurities addressed as soon as possible. And make you get the right documentation to them at the right time.
Where things are not working out, then try and intervene to put everyone back on the right path, but if you have to part company then do it early and properly. And above all, record it all in their personnel file – it really does count when things go horribly wrong.
