New law on dismissing employees
New law on dismissing employees
In recent years employers have had to go through the burdensome processes under the statutory dismissal and disciplinary procedures (DDPs) to dismiss an employee for almost any reason, with even small errors leading to the dismissal being automatically unfair and risking Tribunal claims of up to £63,000.
A new ACAS Code
Since 6 April 2009 the law has changed and the DDPs do not apply to most dismissals after 6 April 2009. Instead, employers now have to follow the principles contained in the new Acas Code which applies to “disciplinary situations”, including misconduct and poor performance dismissals. All employers really should familiarise themselves with the Acas Code. See www.acas.org.uk
A new ACAS Guide
The Acas Code is supplemented by a guide, “Discipline and grievances at work – The Acas Guide” which gives further guidance on best practice. The Guide does not have to be taken into account by Tribunals but does contain some useful guidance and employers should not ignore it.
In summary before dismissing for misconduct or poor performance, an employer must:
- Investigate the issues.
- Inform the employee about the issues in writing.
- Conduct a disciplinary hearing or meeting with the employee. At this Employers should explain the complaint against the employee and go through the evidence that has been gathered.
- Give employees a reasonable opportunity to ask questions, present evidence and call relevant witnesses.
- Inform the employee of the decision in writing.
- Give the employee the right of appeal
The Acas Code applies to dismissals for misconduct and poor performance but need not be followed for dismissals for other reasons, such as dismissals on grounds of ill-health, redundancy or the non-renewal of a fixed-term contract. A fair procedure should still be followed.
Although the Acas Code does not apply to redundancy dismissals, employers will still have to follow a fair process and consult with employees. Employers considering making redundancies would be wise to take legal advice as mistakes can lead to costly Tribunal claims, at a time when they are attempting to cut costs (not incur them!).
The Acas Code does not explicitly apply to dismissals on grounds of ill-health, but the Acas Guide provides guidance on dealing with all types of absence, including long-term absence through ill-health. Employers need to consider if additional duties arise from the Disability Discrimination Act when dismissing employees with a long term illness and should ensure they follow a fair and proper procedure.
Dismissals for discriminatory reasons (eg. disability, maternity leave and pregnancy will always be unfair regardless of process.
Overall employers should benefit from the less rigid approach of the Acas Code which accepts that different employers have different resources available. However, care is still needed when dismissing employees. Policies and contracts may need reviewing to ensure procedures are compliant with the Acas Code, and seeking legal advice prior to dismissing an employee will help minimise the risk of high value claims against an employer for unfair dismissal.
“Victoria Young is an employment solicitor in the Employment Services Team at Blocks solicitors in Ipswich. Victoria recently joined Blocks’ existing highly rated employment lawyers, and has wide experience in dealing with all employment law matters for a broad range of different types of clients. She can be contacted on 01473 343922 or emailed at firstname.lastname@example.org
The above is general comment only and individual advice should be taken