If there's one opinion that firmly divides
providers of employment law
advice, it's whether sacking staff is too difficult. The debate was ignited
again recently by Conservative Party chairman Grant Shapps, who controversially
suggested that managers could often only dismiss under-performing employees
with resort to "disingenuous" reasons. Employee Management Ltd (http://www.employeemanagement.co.uk)
considers where the truth may lie.
Shapps has championed the granting of greater
power to businesses "to say 'thank you very much, it has not worked out;
here is a decent package to move on from this role'", and hinted that a future
Conservative electoral victory could lead to looser rules. His stance was
opposed by both Labour and the TUC.
But is Shapps right about HR support clients finding it
difficult to sack people? His view has won the backing of one barrister, Kate
Russell, who declared that "there's stacks of opportunity for
reform." She cited a case in which she'd been involved, where one of a
client company's employees - having already twice been warned for persistent
lateness - was late again, meaning that they could technically be dismissed.
However, Russell explained, with the employee
having only been late by four minutes, the employer shied away from sacking
them, in the knowledge that doing so would prompt an employment tribunal for
heavy-handedness.
According to the letter of the law, valid
reasons for a HR services
client dismissing an employee include redundancy, capability or conduct, or
issues that would prevent a person working - such as the loss of a driving
licence. But there's also the need in British law for the dismissal of an
employee to be "fair", and for a dismissal to be regarded as fair,
the employer must have acted "reasonably" - a term for which no legal
definition exists.
It leaves the employer with insufficient
protection, says Russell. She said that even with new rules meaning that
employees can only bring a tribunal if they pay for it, "I still think
employers will think twice about actually firing someone, because they'll
wonder if it's worth it."
No manager can dismiss workers without notice
unless it is for gross misconduct, nor can they pay workers in lieu of notice
unless permitted to do so in the relevant employment contracts. This
reemphasises the notion that employers with tighter contracts have more
flexibility when it comes to ending the employment of their staff. Employers
are not always having to fight against the system to sack workers either, given
that recent legislation has doubled the qualifying period for claims of unfair
dismissal to two years. Only after this two-year period, does a “fair”
procedure become essential to minimising the scope for unfair dismissal claims.
Up until that point, there is more flexibility available to employers in how
they go about firing their employees.
If you feel that your own firm's employment documentation
requires a little extra scrutiny to ensure its robustness in this respect, feel
free to get in touch with Employee Management Ltd (http://www.employeemanagement.co.uk)
today.
Editor’s
Note: Employee Management Ltd (http://www.employeemanagement.co.uk) are
represented by the search engine advertising and digital marketing specialists
Jumping Spider Media. Email: info@jumpingspidermedia.co.uk or call: +44 (0)20 3070 1959
/ +34 952 783 637.
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