If there’s one opinion that firmly divides providers of employment law advice, it’s whether sacking staff is too difficult. The debate was ignited again recently by Conservative Party chairman Grant Shapps, who controversially suggested that managers could often only dismiss under-performing employees with resort to “disingenuous” reasons. Employee Management Ltd (http://www.employeemanagement.co.uk) considers where the truth may lie.
Shapps has championed the granting of greater power to businesses “to say ‘thank you very much, it has not worked out; here is a decent package to move on from this role'”, and hinted that a future Conservative electoral victory could lead to looser rules. His stance was opposed by both Labour and the TUC.
But is Shapps right about HR support clients finding it difficult to sack people? His view has won the backing of one barrister, Kate Russell, who declared that “there’s stacks of opportunity for reform.” She cited a case in which she’d been involved, where one of a client company’s employees – having already twice been warned for persistent lateness – was late again, meaning that they could technically be dismissed.
However, Russell explained, with the employee having only been late by four minutes, the employer shied away from sacking them, in the knowledge that doing so would prompt an employment tribunal for heavy-handedness.
According to the letter of the law, valid reasons for a HR services client dismissing an employee include redundancy, capability or conduct, or issues that would prevent a person working – such as the loss of a driving licence. But there’s also the need in British law for the dismissal of an employee to be “fair”, and for a dismissal to be regarded as fair, the employer must have acted “reasonably” – a term for which no legal definition exists.
It leaves the employer with insufficient protection, says Russell. She said that even with new rules meaning that employees can only bring a tribunal if they pay for it, “I still think employers will think twice about actually firing someone, because they’ll wonder if it’s worth it.”
No manager can dismiss workers without notice unless it is for gross misconduct, nor can they pay workers in lieu of notice unless permitted to do so in the relevant employment contracts. This reemphasises the notion that employers with tighter contracts have more flexibility when it comes to ending the employment of their staff. Employers are not always having to fight against the system to sack workers either, given that recent legislation has doubled the qualifying period for claims of unfair dismissal to two years. Only after this two-year period, does a “fair” procedure become essential to minimising the scope for unfair dismissal claims. Up until that point, there is more flexibility available to employers in how they go about firing their employees.
If you feel that your own firm’s employment documentation requires a little extra scrutiny to ensure its robustness in this respect, feel free to get in touch with Employee Management Ltd (http://www.employeemanagement.co.uk) today.