The problem
Your restaurant manager has been off sick for one or two days in most weeks for several months. You believe that the sickness is genuine but decide that action will have to be taken, if matters do not improve, because the absences are damaging the business.
You have spoken with him about the situation several times before his shift is about to begin. He agrees that the business requires him to attend work more frequently and says he will try to come in more often. It is agreed that the issue will be reviewed in a month.
Unfortunately, his health does not improve and you tell him that, in order to protect the business, he must leave.
The LawCompulsory minimum procedures concerning dismissal, disciplinary procedures and grievances came into effect on 1 October.
The new procedures, intended to encourage disputes to be resolved in the workplace rather than in employment tribunals, make dismissals automatically unfair (subject to the normal one-year rule) if the relevant procedure is not followed to the letter.
The Standard Dismissal and Disciplinary Procedure - one of four procedures being introduced - should always be followed whenever an employer is contemplating a dismissal on any ground, including conduct, competence, ill-health, redundancy, non-renewal of a fixed-term contract and retirement, subject to limited exceptions.
The procedure will also have to be followed where an employer is contemplating taking action short of dismissal as a result of the employee's conduct or capability.
Whether or not the procedures apply, the employer is still bound by the usual rules relating to unfair dismissals.
Expert adviceThe Standard Dismissal and Disciplinary Procedure is as follows:
- Step 1
1. Employer sets out in writing the nature of the employee's conduct, capability or other facts that may result in dismissal or disciplinary action.
2. Employer sends a copy of this statement to employee. (I would recommend in most cases that employers also send statements from witnesses obtained in the course of any investigation.)
3. Employer must invite employee to attend a meeting to discuss the matter.
- Step 2
1. Meeting must be at a reasonable time and place.
2. No action other than suspension on full pay is to take place before the meeting.
3. Employee must take all reasonable steps to attend.
4. After the meeting, the employer must inform the employee about any decision and offer the employee the right of appeal.
- Step 3
1. If employee wishes to appeal, he or she must inform the employer.
2. The employer must invite the employee to attend a further meeting to hear the appeal.
3. Final decision must be communicated to the employee.
All employees have the right to be accompanied at a meeting by a colleague of their choice or a trade union official. The companion can address the meeting but cannot answer questions for the employee.
Check list
- Review existing dismissal, disciplinary and grievance procedures to ensure they comply with the new procedures.
- Issue revised procedures to staff.
- Issue a non-disciplinary dismissal procedure to ensure that the three-step procedure is followed when dismissing staff for other reasons, such as redundancy and non-renewal of a fixed-term contract. This can be part of the disciplinary procedure itself or, preferably, a freestanding policy.
- Issue guidance to all members of staff who may be required to deal with dismissals and disciplinary or grievance procedures.
- Ideally, prepare pro forma documents for such procedures to ensure that they are adhered to.
- Review existing pro forma letters to ensure they comply with the procedures.
Beware!
As in the above example, where the employer has not complied with the correct procedure (and the employee has completed, in general, one year's service), it will almost always be ordered to pay him or her at least four weeks' pay.
An employment tribunal will in most cases increase an award, calculated in the normal way, by between 10% and 50%, up to the maximum limit (for compensatory awards, this is £55,000).
Contact
Ray Silverstein, Browne Jacobson
020 7539 4940
rsilverstein@brownejacobson.com