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Employment advice from Dawson Hart

Previously we have examined recruitment of employees and contracts of employment and how to ensure you are compliant with the law. But what happens during employment when something goes wrong, either with the employee’s conduct at work or their capability to do the job they were hired to do? If this happens, then you will need to follow a proper disciplinary or capability procedure. Sometimes the issues are so serious that it could lead to the dismissal of the employee, and if they have two years’ continuous service, then they will have their unfair dismissal rights accrued. You must be especially diligent in your processes and procedures, as failure to do so could result in a claim in the Employment Tribunal. You should, ideally, have a set of disciplinary and grievance procedures in your employment documentation, but failing that, you should consult the ACAS Code of Practice, which is available here for downloading.

Although it is not a strict legal obligation to follow the ACAS Code, failure to do so will allow the judge to make an uplift of up to 25% of damages awarded to an employee in an unfair dismissal claim if an employer has not followed the guidance.

If your employee does not have the required two years’ service for unfair dismissal rights, it may be tempting to forgo any formal disciplinary procedure. This is not advised, as an employee may be entitled to bring a discrimination claim if they feel they have suffered a detriment contrary to the Equality Act 2010, or they may have a claim for automatic unfair dismissal or for being dismissed due to whistleblowing. These sorts of claims have no qualifying period, unlike an ordinary unfair dismissal claim, so the best thing to do in these situations is to get advice first before dismissing an employee.

For more information, contact Robin Williams at Dawson Hart, Solicitors on 01825 762281.