Dismissing staff with short service (under two years)

dismissing staff with short serviceNew to the organisation, but giving you grief? Here is our two-minute blast on dismissing staff with short service, or under two years).

Many of you feel comfortable with disciplining and dismissing staff who have more than two years service and therefore who are able to claim unfair dismissal. However, there continues to be much confusion about dismissing staff with shorter service. We hope this clarifies a few things.

The law

  • Employees need 24 months’ continuous service to be able to claim unfair dismissal.
  • This means that employers have a degree of flexibility in managing and dismissing an employee who has less than two years service.
  • However, BEWARE, they can still claim for things such as wrongful dismissal, breach of contract and discrimination … if in any doubt at all, check with us first!

Key question asked by clients

“How do I dismiss someone with short service? Can I just say we don’t want you tomorrow?”

The short answer: Yes, just tell them they are dismissed and that you will pay any notice pay/salary etc. owning to them.

The long answer: No, it’s better to follow a procedure to dismiss them that is in line with best practice. This procedure will take up more time than just texting a dismissal notification, but has a number of advantages:

  • Helps you understand and head off any discrimination claims that might come your way from this employee.
  • Demonstrates to other staff you are a professional employer.
  • Ensures you maintain good employee relations within the organisation.
  • This will stop a disgruntled employee going to the press about the way they were sacked – avoiding any adverse PR.
  • Helps maintain your company image amongst recruiters and potential employees.

Best practice procedure when dismissing staff with short service

  • Invite them in writing to a formal meeting. Advise them that this meeting might result in their dismissal. Give them the right to be accompanied. Advise that they will have an opportunity to respond to what is said.
  • After the meeting, adjourn for at least 30 minutes to demonstrate you are considering the situation and did not reach a conclusion before they had a chance to respond.
  • Reconvene and formally notify them of their dismissal. Confirm this in writing and give them the right to appeal within 5 days.

If you would like to talk to one of the Jaluch team about best practice, please contact us. We offer a pay-as-you-go service, so you will only pay for the time it takes to resolve your query.

Our observations at Jaluch

Hasty decision-making: It is worrying that so many decisions are made within just a few weeks of the employee starting. Are managers making rushed decisions sometimes? Are these ‘gut instinct’ decisions, rather than based on evidence of inadequate performance?

Getting it right at induction: Too many youngsters are being fired at a very early stage due to clashes over what is and is not considered to be acceptable behaviours/attitudes at work. Please remember that in the ‘good old days’ many companies provided lengthy inductions for new employees and particularly for those new to work. People don’t just know what is expected, this is part of what you need to include in their training. Are employers’ expectations sometimes too high and induction training too little?

Personality clashes: Too many are sacked due to what is perceived as personality clashes and the employee not being a good culture fit. Do enough managers understand it is important to get a balance of personalities in a team and that it is dangerous to always recruit people who are similar to ourselves – even though that seems to make for easier management? Time to start checking this more thoroughly at interview?

Key factors for you to consider when dismissing

Let them speak! Employees nowadays are very well educated and many will not hesitate to sue you if there is something they think they can sue you for. Providing the employee an opportunity to speak before being dismissed, and treating them ‘humanely’ when dismissing them and giving them the right to appeal can help you avoid being sued unnecessarily.

Manage complaints/grievances: If a grievance is raised during the dismissal you need to decide how to handle it. If it relates to something they could ultimately sue you for (e.g. discrimination) then make sure you put enough effort into your investigation and response. If you think the risk is very low, or the issues so banal that they would not merit a tribunal claim, then it is your decision about how much time you put into it.

Consistency is key: Dismissing one person by text message, but then following a procedure with another could lead to claims of unfair treatment which might expose you to a claim of discrimination. So be consistent. Make sure your disciplinary procedure in your contract or handbook clearly states that it is ‘non contractual’ to avoid any breach of contract claims.

Be wary of discrimination: If your managers say they know what discrimination issues to look out for, check out their confidence by asking them to list the 9 protected characteristics –

  • Race or nationality
  • Sex
  • Sexual orientation
  • Gender reassignment
  • Religion or belief
  • Pregnancy or maternity
  • Disability
  • Age
  • Marital or civil status

Need Help?

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If you’d like some more guidance on dismissing staff with short service, or anything please contact us!

We can help you with:

  • Drafting settlement agreements
  • Responding to tribunal claims
  • Chairing dismissal meetings
  • Note taking at formal meetings
  • Independent investigations
  • Drafting policies and contracts
  • Training for line managers in recruitment and selection and also training in discipline and dismissal

The information within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individuals matters.

 

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