Emma Thomas & Paul Callegari: Ten questions employers should ask before dismissing

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As the referee in the recent Premiership match between Arsenal and Chelsea discovered to his cost, dismissing someone is not always as straightforward as it might seem. In this article we address some key points that employers should consider before dismissing in order to minimise any subsequent exposure.

Will the protected conversation really be “off the record”?  

The introduction of pre-termination conversations, or “protected conversations,” has opened the gateway to employers being able to have conversations with employees about ending the employment relationship before embarking on drawn out disciplinary or grievance processes. However, it’s important to remember that these conversations will only be “off the record” in relation to ordinary unfair dismissal claims. Further, “protected conversations” will not be protected if there has been any “improper behaviour” on the part of the employer. The ACAS Code of Practice on Settlement Agreements states that “improper behaviour” can encompass harassment, discrimination, bullying, intimidation, victimisation, and undue pressure, which includes not giving the employee sufficient time to consider the offer being put forward.

Before inviting the employee to a protected conversation, employers should consider the risk of them bringing any other Tribunal claims which would remove the protection. Care also should be taken when deciding whether the employee should be allowed to bring a companion to any protected conversation.  Although the ACAS Code suggests that it’s good practice to allow a companion to attend, this will make it difficult to keep the details of the conversation and proposed terms being offered confidential from other employees.

Is the decision to dismiss consistent?  

In order to be fair, companies need to ensure that its decision to dismiss is consistent with previous disciplinary decisions. This does not necessarily mean that employers cannot dismiss an employee if they previously issued a final written warning for the same misconduct to someone else. Disciplinary situations should be considered on a case-by-case basis and individual circumstances should be taken into account before reaching a final decision on the most appropriate action. If the business decides to depart from previous decisions, it must ensure that it can justify the difference in treatment.

Are there any mitigating circumstances the company should consider?  

Employers should always ensure that it takes any mitigating circumstances into consideration before dismissing. Has the employee apologised and shown remorse? Do they have a previously unblemished employment record? Has the employee recently returned from sick leave? It’s also good practice to ask employees at disciplinary meetings whether there are any mitigating circumstances they wish the business to take into consideration, to reduce the risk of the company being accused of failing to take such circumstances into account.

Has the business obtained all the evidence required to dismiss an employee on long term sick leave?  

If the company is considering dismissing an employee on long term sick leave it’s essential that it checks that the employee’s medical report is up to date and that nothing has changed. Employers also should remember that although it is allowed to take medical evidence at face value, if the report contains errors or fails to provide any proper explanation to back up the doctor’s opinion, the company has an obligation to question the contents of the report.

Is it reasonable to rely on live or expired warnings? 

Employers should check the dates of all warnings on which they wish to rely to ensure that they are still live, remembering that warnings run from the date of the offence and not the date they are issued. Although recent case law has suggested that expired warnings can be taken into consideration when dismissing, employers should tread carefully when doing so.

Is the business protected?  

Employers should check the restrictive covenants of key employees and that its confidential information is protected before terminating employment. If employees use networking sites, employers also should consider the steps it intends to take to protect clients and customers to whom the employee is connected through networking sites.

How is the company going to tell the employee?  

Employees with under two years’ service do not have the right to bring an unfair dismissal claim, unless they are dismissed for an automatically unfair reason.  Many employers, therefore, use this two-year period as an extended probationary period, dismissing employees before their second anniversary if the employment relationship is not working out. It’s important to remember, however, that if the dismissal is communicated by letter, the effective date of termination is the date on which the letter is received or on which the employee could have reasonably become aware of their dismissal. For example, if the employee is on holiday when the letter is sent, the date of dismissal will be deemed to be the first day that the employee could have opened the letter following their return, which could result in the employee inadvertently gaining unfair dismissal protection. Therefore, delivery of dismissal letters in person or by email usually is preferable to posting.

Does the company have to offer the employee the right of appeal? 

Although the ACAS Code on Disciplinary and Grievance Procedures is silent on whether it applies to dismissals that are the result of a redundancy or the non-renewal of fixed term contracts, employers should carefully consider whether they should offer the right of appeal in any event. Although redundant employees who are not offered the right of appeal may not be entitled to claim an uplift of up to 25 percent of their compensatory award for breach of the ACAS Code, case law has highlighted that failing to offer the right of appeal could still render the dismissal process procedurally unfair.

Should the company pay the employee’s notice?  

If the employee has indicated that they are intending to bring an unfair dismissal claim against the company, the employer should consider whether it should pay the employee their notice pay or hold on to it and use it as part of any settlement discussions that may take place. If employees’ contracts of employment contain restrictive covenants, however, it is important to remember that these will not be enforceable if the business decides not to pay the employee’s notice in breach of their contract.

Should the company give the employee a reference?  

Finally, the Court of Appeal has recently confirmed that post-termination victimisation is prohibited by the Equality Act 2010.  Employers should therefore think carefully before refusing to give a reference if a former employee has made allegations of discrimination or actually brought a discrimination claim, since such a refusal could form the basis of a new claim for victimisation.

By Emma Thomas and Paul Callegari, K&L Gates LLP

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