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STAFFING PROBLEMS We are often asked what and how to deal with problem staff. This is a very difficult and technical area and we would always recommend that you took professional legal advice in each individual case. However, we have set out below the main principals which you should be aware of. An employer has the right to terminate an employee’s employment at any time, but unless the decision is based on a fair reason, the employee can claim unfair dismissal and you could end up in a costly Employment Tribunal situation. You can dismiss someone if :- - They are incapable or do not have the qualification to do their job. - They behave in an inappropriate manner, - The role they do is no longer required, and they are made redundant. Care must be taken that there is proper consultation and no alternative work exists. The selection process must also be fair. - They can no longer do their job as a result of a legal matter, ie. loss of a driver’s driving licence, conviction of fraud of a financial advisor. - Any other substantial reason occurs. Currently, up to one year’s employment does not give the employee the right to know why you have been dismissed, and thus no claim for unfair dismissal can be made. After this period however, an employee can claim unfair dismissal or constructive dismissal up to three months after they leave. The remedies for unfair dismissal are :- - Reinstatement of the employment, on the same terms and conditions (rare). - Re-engagement with the employer, doing a different job (rare). - Compensation payment (most common). YOU CAN NEVER DISMISS SOMEONE ON THE GROUNDS OF :- SEX RACE DISABILITY PREGNANCY OR CHILDBIRTH REFUSAL TO OPT OUT OF WORKING TIME REGULATIONS BELONGING TO A UNION Try any of the above at any time, even one day after starting with you, and you will find yourself in court facing a very large compensation payment. When dealing with any disciplinary matter, it is important to follow a recorded procedure. Each employee should be aware of this and it should form part of their terms and conditions of employment. Each case should be weighed up, the ‘defendant’ should be heard, and has the right for a ‘friend’ to be at the hearing. The punishment should fit the crime. A simple minor infringement can not result in sacking ! The process should contain: First Warning Minor Offence : Oral Warning, giving the reason for the warning and the time limit that it will run for (ie. 6 months). More Serious : Written Warning, giving details of the complaint, what must be done and the time scale (ie. 12 months).
Final Warning If there is no improvement during the period of the first warning, a final warning should be given in writing, again detailing the complaint, warning of the consequences if improvement is not made, and give a specified period of existence (ie. 12 months).
Dismissal or Sanction If improvement still does not occur or other event occurs during the period, the option to dismiss or other sanction can be enforced. The person should be informed as soon as possible. A right to appeal any decision occurs at all stages. Again, this is a very complex area, which needs professional advice. The above is merely a synopsis of the rules. A more detailed account can be found on the ACAS website (www.acas.org.uk/publications/pdf/CPOI.pdf). Whatever you do, do not give a ‘knee-jerk’ reaction to an event. Suspend on full pay, meet and discuss the problem formally and then consider all the relevant facts. Then take action.
For further information, please contact us. |
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