Partner Article

Managing post-lockdown dismissals fairly

As we are starting to emerge from lock-down, employers are inevitably having to manage issues which may have been placed on the back-burner until now. Dismissing people is hardly ever a simple issue, but it’s an increasing issue across the UK and wider world as the pandemic approaches 18 months of economic global chaos.

First of all, unfortunately dismissals are sometimes unavoidable but why does Jaluch encourage you to ensure any dismissals you make are ‘fair’?

Helps you manage risk around negative PR…

…in these days when we so often operate in a social media ‘kangaroo’ court.

Accountability doesn’t stretch into what we post on social media, it seems, so employers in most countries of the world have to be extra careful. Mindful of the damaging effects of bad PR – think investors, customers, recruitment, staff etc.

Ensures you can minimise legal fees…

…incurred when claimants take you to court. We estimate that currently you will be lucky to spend less than £30,000 if you need to defend yourself in court. It could easily be double that too. Think of it this way, for every legal case that is brought, if you had avoided it by following procedure for one of the ‘fair’ reasons for dismissal you could pay for one extra full time person!

Positions you to avoid hefty payouts/compensation… …if you are found to have dismissed someone wrongly or unfairly (includes constructively). Again, money spent paying compensation is just money wasted. Far better to avoid the conflict and spend the cash on more staff or investment in new infrastructure or innovation.

Retention of top talent… …is key and when staff view your treatment of their colleagues as unfair, you might, as a result, lose good talent. So often nowadays our employees’ prioritise the culture, as much as the role they are in. Be mindful of the culture you create in the way you manage your staff and the way that is perceived.

Helps us to help you keep your senior talent focussed… …on growth, customers, quality and other positive things, rather than getting them dragged down into the weeds, answering legal challenges, endless appeal and grievance hearings that so seldom resolve anything, and mindless form filling and admin.

Ensures you have limited liabilities… …should you wish to merge or be acquired. The due diligence process will require you to disclose dismissals, ongoing conflicts etc and these will all impact in some way.

In the UK, just as a reminder, there are just five fair reasons for dismissal currently. There used to be a 6th one ‘Retirement’ but that was removed a number of years ago now.

Our 5 fair reasons are as follows:

1- Conduct/Misconduct 2 - Capability/Performance 3 - Redundancy 4 - Statutory illegality or breach of a statutory restriction 5 - Some Other Substantial Reason (SOSR)

Why so many dismissal decisions are ’unfair’

The heat of the moment…

…isn’t just a phrase that applies to the rash actions of angry staff but applies equally to managers and directors when tempers flare. Dismissals are often unfair because emotions cloud our judgement. We all know that so why do we persist in making decisions when we know our judgement is likely to be flawed? This is particularly applicable in current times when businesses are trying to get people back in the workplace, but staff are refusing. Make sure no rash decisions are made.

Ignorance…

…is our second reason for far too many unfair dismissals. However, as we all know ‘ignorance is no excuse in the eyes of the law’. You don’t know what you don’t know and in our experience some business leaders just don’t ask enough questions or skimp when it comes to getting good advice.

Time pressure…

…comes third in our list of reasons for unfair dismissals. That little whisper in our head that encourages us to cut corners, save time by not writing up or taking good notes at formal meetings, not offer the right to appeal etc. All those naughty whispers in our head can create whiplash when it comes to eyeing up the legal consequences of what we have done in haste.

Complacency or arrogance…

…is fourth in our list. If you think Employment Tribunals and grievances only happen to other people then you will get complacent, not check your facts, not do a thorough investigation, not follow the procedures etc and all that complacency can cost dear when your actions are later scrutinised

And finally, lousy admin…

…is fifth in our list of why so many dismissals are found to be unfair in our courts of law. If you don’t keep the evidence, make notes, be able to find your notes, respond to court papers within deadlines, have the facts at your fingertips etc then don’t be surprised if your employees or the Employment Tribunal find you unprofessional and your decision making ‘unfair’.

So what do we advocate?

• Educate your managers so they are not ignorant of the demands of the law.
• Respect those who role model great admin practices in your business, we could all improve in this area.
• Make managers responsible for their departmental budgets and make absolutely sure that all legal costs will be assigned to departments rather than to one central legal pot. This will focus minds.
• Create a culture that values quality of decision making over speed of decision making.
• Encourage greater collaboration and questioning so that balls are not dropped and expertise never tapped into.
• Reward great managers who create, within their functions, a culture of attention to detail, care, consideration, responsibility and accountability, for these will be the ones that can show you the way if you want to be viewed as ‘fair’, winning you the trophies of great retention, reduced legal costs and high levels of engagement.

We only have five fair reasons for dismissal and one ACAS code that sits alongside them, setting out what the procedure is to get your dismissal right.

It’s generally not complicated, so how about you nudge a few more of your managers and leaders in the right direction to properly protect your organisation? Time invested now will save you ten fold in the future…

This was posted in Bdaily's Members' News section by Helen Jamieson, CEO at Jaluch .