How To Sack Employees - Without Being Taken To Tribunal

If you manage employees, from time to time discipline and dismissal will be an inevitable part of your work. Employers are under a duty to follow their procedures, make a decision that is sensible and proportionate on the facts and take all mitigating circumstances into account. Applications to tribunal have increased significantly in recent years and going to tribunal is always tough, even when you are absolutely in the right. Using real life examples, this book talks the reader through the legal framework, best practice, tactics and how to prevent getting into difficulty in the first place.

If you manage employees, from time to time discipline and dismissal will be an inevitable part of your work. Employers are under a duty to follow their procedures, make a decision that is sensible and proportionate on the facts and take all mitigating circumstances into account.

Applications to tribunal have increased significantly in recent years. Below is a list of the mistakes that most frequently lead to a finding of unfair dismissal against employers.

• The employee was not given the opportunity to defend himself or put forward his side of the story.
• The employee was not made aware of all of the evidence against him.
• There was no disciplinary hearing.
• The investigation of the alleged misconduct or shortcomings was inadequate.
• An earlier ‘warning’ was not made explicit.
• The disciplinary procedure was not applied in full.
• The procedure used did not follow the employer’s own rules.
• The employer chose not to have a procedure at all for more senior staff and managers.
• The employee was not given a reasonable opportunity to improve performance or conduct.
• Insufficient investigation of the medical background in dismissals on grounds of ill health.
• The employee had not been given an opportunity to comment on medical evidence in a case of ill-health dismissal.

It would be fair to say that these days employers face an increased risk of tribunal claims. While many claims are quite legitimate, there is a significant minority who will put in a claim because they feel wronged (irrespective of the merits of the case) or simply for the hell of it. As managers we need to manage effectively, taking such risks into account. As well as being compliant and fair, we need to be tactical as well.

Follow the guidance given in this book and you will be able to take an employee through the disciplinary procedure, to dismissal if necessary and massively reduce the risk of a tribunal claim.

Preface

About the author

Miscellaneous notes

1 Overview of the Ebook
1.1 Introduction
1.2 The legal framework
1.3 The reasonable employer
1.4 Standards and rules
1.5 Capability and conduct
1.6 First steps
1.7 The investigation
1.8 Preparation for a disciplinary hearing
1.9 Handling the disciplinary hearing
1.10 Sanctions
1.11 Appeals
1.12 Grievances raised during the discipline process

2 The legal framework
2.1 Introduction
2.2 ACAS Code of Practice 1
2.3 ACAS: fairness
2.4 ACAS: disciplinary process
2.7 Legal representation

3 The reasonable employer
3.1 Introduction
3.2 Characteristics of the reasonable employer

4 Standards and rules
4.1 Introduction
4.2 Standards
4.3 Rules

5 Capability and conduct
5.1 Introduction
5.2 Capability (‘Can’t’)
5.4 Poor work performance
5.5 Ill health
5.6 Conduct (Won’t’)

6 First steps
6.1 Introduction
6.2 How to handle an informal discussion
6.3 Informavl v formal discussions
6.4 Tips

7 The investigation
7.1 Introduction
7.2 How to carry out an investigation
7.3 Investigation checklist
7.5 Witnesses
7.8 Suspension

8 Preparation for a disciplinary hearing
8.1 Introduction
8.3 Right to be accompanied

9 Chairing the disciplinary hearing
9.1 Introduction
9.2 Disciplinary hearing checklist
9.4 Possible pitfalls

10 Sanctions
10.1 Introduction
10.2 Is the sanction a ‘reasonable response’?
10.3 Make the right to dismiss very clear
10.4 Factors to consider in reaching a decision
10.5 Totting up
10.6 Expired warnings
10.7 Formal warnings
10.8 Date of dismissal
10.9 Dismissal by letter
10.10 Improvement

11 Appeals
11.1 Introduction
11.2 Appeal procedure
11.3 Hearing an appeal

12 Grievances raised during the discipline process
12.1 Introduction
12.2 Overlapping discipline and grievances

Kate Russell, BA, barrister, MA is the Managing Director of Russell HR Consulting and the author of this publication. As Metro’s HR columnist, she became known to thousands, with her down-to-earth and tactical approach to HR. Kate is a regular guest on Five Live and her articles and opinions have been sought by publications as diverse as The Sunday Times, Real Business and The Washington Post, as well as every major British HR magazine. Her HR blog has been rated third best in the UK. She is the author of several practical employment handbooks and e-books, the highly acclaimed audio update service Law on the Move, as well as a monthly e-newsletter, the latter document neatly combining the useful, topical and the frivolous.

Russell HR Consulting Ltd delivers HR solutions and practical employment law training to a wide variety of industries across the UK. Our team of skilled and experienced HR professionals has developed a reputation for being knowledgeable, robust and commercially aware. We are especially well-versed in the tackling and resolving of tough discipline and grievance matters.

We also specialise in delivering practical employment law training to line managers, business owners and HR professionals, both as in-house, tailor made workshops or open courses. We provide a wide range of practical employment training, enabling new and experienced managers to work in a compliant and ethical fashion, and gain optimum employee output.

At Russell HR consulting we will design and deliver a solution that suits your particular needs, identifying and addressing the issues in the way that best fits your workplace.