Here at CHaRM we can never understand why employers are so keen to pay money to outgoing employees - especially when dismissal was actually the right decision. For a little bit more time up front employers could be in a much stronger position when they are called upon to defend their actions and their decisions. Even with the apparent freeedom in dismissing employees with under two years' service, a proper process needs to be followed to avoid the risk of discrimination claims (for which no service is required). Canny ex-employees are also using the whistleblowing legislation to get around the service requirement in order to bring a claim at Employment Tribunal. When those ex-employees are supported by no-win-no-fee solicitors who know what they are doing, it can put the employer in a difficult position if no attempt has been made to follow a proper process for dismissal. Here at CHaRM we have been supporting employers who have been called upon to justify their actions and decisions and we thought it would be helpful to share our experiences with our clients and their managers.

With the introduction of a fee structure for claims at Employment Tribunal and the unfair dismissal barrier being raised to two years service, many employers think that they don't have to worry about following a dismissal procedure anymore. Our experience over the last few months has shown that not to be true. The requirement for both parties to consider early conciliation means that every decision made by an employer and all actions taken during the dismissal process are under scrutiny before a claim ever reaches a Tribunal. Following a straightforward three step dismissal process for any dismissal under two years' service takes minimal time and may save significant costs later on. Here at CHaRM our experienced advisers can help you with that simple three step procedure. It will be worth it in the long run.

When any claim is lodged at a Tribunal the ex-employee will be asked if they wish to consider early conciliation. This involves trying to reach a financial settlement from the employer. If the employee refuses conciliation the claim goes to ET, provided the fee is not an issue. The employer can also refuse conciliation when ACAS approaches them, in which case they will receive the usual employer's response to complete prior to the case going to Tribunal. If however the employer does say they are willing to conciliate the scrutiny of the process followed will take place at that point, in order to determine whether or not there is a case to answer. As with all things, who you get as a Conciliator will impact on how well the conciliation process is conducted, but in our experience the ACAS conciliators have, in the main, been well balanced and they have managed the expectations of both parties during the early conciliation process. If you get a bad conciliator then the early conciliation period will pass and if the ex-employee is set on going to Tribunal you will receive their claim and will be required to respond within 28 days. If you have followed a proper process and have spent a little time up front following the three step dismisssal procedure for people with less than two years' service, the likelihood is you will not have to part with any money by way of settlement.

We have had three different experiences with early conciliation over the last few months. We hasten to add that nothing we did brought about the claims!

  • In the first case we were asked to help with, the employer had received the certificate telling him that the early conciliation process was at an end and the employee was released to raise the claim at Tribunal. The employer didn't even know that the early conciliation process had been taking place as no attempt had been made by ACAS to contact him. The claim was a fairly straightforward wages act claim and we advised the client to rectify the wrong. That case is evidence that you do not always get a good ACAS conciliator and that sometimes things can happen of which you are totally unaware.
  • In the second case we had been involved in advising the managers on a particularly difficult dismissal of someone with over two years service. With the client we put a timeline together of what had happened and the process we had followed for ACAS after the conciliation period had begun. The manager dealing with ACAS within our client also talked very knowledgeably and very calmly to ACAS about the reasons why the decision to dismiss had been reached. The decision had not been taken lightly. ACAS managed the ex-employee's expectations very well in that particular case as the Company was able to provide the evidence to demonstrate that a full and proper process had taken place. The early conciliation period passed without any financial settlement being made and without the claim proceeding to Tribunal.
  • In the third case we conciliated with ACAS on the employer's behalf, following a dismissal of under two years' service. We reached a small financial settlement in that situation because, although a three step procedure had been followed, some of the paperwork in the early stages of the process (before we became involved) was confusing. We had corrected the process from the point when we became involved but it was agreed with the client that a settlement would be a good commercial decision. Again, the ACAS conciliator was a good one and managed the employee's expectations well. That only happened however because we were able to evidence the steps we had taken and to counter the claims that were being made.

The moral of the story therefore? Invest a little time up front to dismiss people properly, even with under two years service. It will save you time and extra cost at a later date. Give us a call for help and assistance as soon as you are faced with a dismissal situation.

 

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