1. There is a significant legal loophole you may be able to use to your advantage…
Did you know employees need two years continuity of service to be able to bring an ordinary unfair dismissal claim? This means that in some cases it can be possible to dismiss a short serving employee quickly and without the need to follow the usual procedures if they turn out to be unsuitable for the role, for example because of their conduct or poor performance. It’s good to know that this can be the case even if you haven’t included a probationary period in their contract of employment.
When it comes to dismissals of any kind its always important to check before you act. There are some claims employees can make irrespective of their length of service, such as discrimination or dismissal for an automatically unfair reason such as whistleblowing so it’s important to seek advice from Kingfisher Professional Services Ltd to ensure the dismissal of a short serving employee is safe in the circumstances.
2. There is a commercial way to exit employees from an organisation without the sleepless nights…
If you are dealing with a difficult situation, it may be worth considering whether using a settlement agreement could help.
Briefly, a settlement agreement is a legally binding contract, voluntarily entered into by an employee and employer, that prevents an employee from making a claim that is covered by the agreement to an employment tribunal or court. The employee usually enters into the agreement in exchange for a payment from the employer. Settlement agreements can be helpful for employers, often where they wish to exit an employee from their organisation.
Common scenarios where you may want to think about whether a settlement agreement could be a good option include where the organisation:
- is finding a formal process such as a redundancy procedure or performance management process too slow or burdensome or
- wishes to end an employment relationship but it’s unlikely a fair dismissal could be achieved, or you are dealing with a difficult employee or issue and there is a risk of a claim
It’s important to bear in mind that for a settlement agreement to be legally binding there are certain requirements that need to be met, one of which is that the employee needs to receive independent legal advice on the terms and effect of the agreement.
If you think you may wish to use a settlement agreement in your organisation you should contact Kingfisher Professional Services Ltd for further information and advice on your situation before taking any action, including broaching the matter with the employee.
3. One of the best things you can do to help protect your organisation is simple (and free!)
Keep appropriate records – when it comes to dealing with employment tribunal claims evidence is key. You will need to be able to show what has happened and that you have acted correctly. Having appropriate records can make the difference between winning and losing a tribunal claim.
4. When it comes to suspected conduct issues it’s time to think like Sherlock Holmes
If an employee is suspected misconduct, it’s important to carry out a full and thorough investigation into the matter to find out all the relevant facts. If this isn’t done and an employee who has two years’ service or more is dismissed a tribunal may well find the dismissal unfair. Just like Sherlock Holmes if you are investigating you need to do so promptly, thoroughly, objectively and with an open mind. You will need to look out for any evidence that supports the employee as well as evidence against them. It’s also helpful to think ahead and bear in mind that unless it’s unavoidable, you will need to have different managers conducting the investigation and any disciplinary hearing and appeal hearing stages.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.