Do we really have to follow procedure?

Why is it so important to follow a procedure in dismissals?

Since the restrictions to bringing a claim at Employment Tribunal have been removed, tribunal claims are increasing year on year, bringing the actions and behaviour of employers and their managers into much closer scrutiny. We believe therefore that it is increasingly important to follow a dismissal procedure of some sort, regardless of service. 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.

For a little bit of 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 freedom 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 using the discrimination and 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.

Follow the three step process

We have always recommended a three step process for all dismissals, regardless of the length of service. This is to reduce the risk of a 25% uplift in any award for a successful discrimination claim where the three step process has not been followed. The removal of Tribunal fees now makes this three step process more important where there is any risk of an ex-employee bringing a two-fold claim. The three step process consists of:

  1. Inviting the individual to a meeting and laying out the reasons for considering dismissal
  2. Holding the meeting and listening to what the individual has to say
  3. Confirming the decision in writing and if it was dismissal, allowing the right of appeal.

The documents concerned in this process will have to be written in a certain way to protect the organisation. If you are in this situation and need help writing the letters and conducting the meeting, give the friendly HR team at CHaRM a call on 0115 984 3119.

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 on to a Tribunal. 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 do not participate, 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.