What are the risks?
Any employee who feels that they have a reason for disputing their termination of employment, which may have been achieved by means of redundancy, discipline or constructive dismissal, may seek to claim financial compensation from their former employer.
Tribunals are extremely time consuming and costly to defend even if the employer is able to successfully defend the case. This can result in settlements being made out of court regardless of the rightfulness of the case as the employer cannot afford the time and effort required to compile a case for the Tribunal.
Who can bring a Tribunal?
Currently, an employee has to have worked for you for two years (if they started on or after 6th April 2012) to be able to bring a claim against you. However, you should be aware that employees of any length of service can and will be able to bring a claim for automatic unfair dismissal if they were dismissed or unfairly selected for redundancy for exercising their employment rights and in situations of discrimination (a full list is contained in our Employment Guide).
Employees now also have to pay £250 to bring a claim to court and further £1,000 if it is accepted, something that is expected to reduce tribunal cases by around 2,000 per year.
To avoid a claim being brought against you, follow these steps:
Follow the correct process
In the event that an employee’s conduct falls below an acceptable standard, instigate the correct disciplinary process as stipulated in their contract of employment, followed and supported by the correct paperwork.
The principles for handling disciplinary situations up to and including dismissals are set out in the Acas Code of Practice on Discipline and Grievance.
Whilst the Code is not legally enforceable, following them can help to prevent tribunal claims.
Employment tribunals will also look to see whether an employer has followed the procedures and can increase compensation by up to 25% where the employer has ‘unreasonably’ failed to follow them.
If you are in any doubt about what you’re doing, seek legal advice immediately. Members of the Forum can call our helpline on 01565 626001.
Keep a paper trail
Most cases which fail at the tribunal stage do so because despite the required outcome being correct the paper trail of evidence is flawed or the management of the event has been incorrectly handled.
Ensure that all your employment records are up to date and fully documented. The most important piece of paperwork that you can have for each employee is an up to date contract of employment, supported by a staff handbook.
Members can download a contract of employment template, which includes the relevant disciplinary rules, or call us on 01565 626001 to find out more about our contract and staff handbook review services.
Ensure that the rules regarding staff conduct are applied fairly but strictly to all employees. Do not be tempted to react to a situation in a manner that may damage any prospect of successfully implementing the sanction you wish to impose.
Don’t forget that, even in what may appear to be a clear case of gross misconduct, you cannot dismiss an employee without due process.
Note: This article is provided for guidance only and does not constitute legal advice. We advise any employer in a disciplinary, dismissal or redundancy situation to seek legal advice immediately – members should call us on 01565 626001.
Research: Peninsula, January 2013