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Standard dismissal procedures – when not to follow them

Standard dismissal procedures – when not to follow them

By Kate PottsRaoul ParekhCaroline Baker - 26 February 2019

Last month, GQ|Littler hosted the first of our interactive Breakfast Club Workshops where we explored when employers might deliberately choose not to follow textbook dismissal procedures. In this brief article we summarise the key takeaway points from the workshop. If you would like to sign up to receive an invitation to our next Breakfast Club workshop, please email your GQ|Littler contact or info@gqlittler.com.

It’s a balancing exercise

Following legal processes to fairly dismiss employees is bread and butter for many HR practitioners. However, there are some situations in which employers can get a better result without following the usual process. HR practitioners need to balance the commercial and legal risks and benefits of the options available to them in each scenario. Below we have set out various factors which may influence a business’ decision to follow a full process or not.

The issue is sensitive and the business want to follow a fair process as a point of principle

The employee participates in an incentive scheme or enhanced redundancy scheme which could result in a significant claim if the employee is dismissed unfairly

Any factors which indicate the employee might have a legitimate whistleblowing or discrimination claim.

Possible factors in favour of following a full process

Possible factors in favour of not following a full process

The employee has more than two years’ service The employee does not have two years’ service (and therefore does not have the right not to be unfairly dismissed) 

This approach fits with the business culture and risk appetite

It may not be appropriate to performance manage those in business critical roles, such as senior managers

The issue is sensitive and the business want to follow a fair process as a point of principle

Likely disruption to team and business of following a full process

The employee works in the regulated sector and/or has a regulated role 

Urgent requirement for new leadership and improvement in performance means the business’ risk appetite is high

The employee participates in an incentive scheme or enhanced redundancy scheme which could result in a significant claim if the employee is dismissed unfairly 

Cost of completing investigation, including keeping the employee employed during that time 

Any factors which indicate the employee might have a legitimate whistleblowing or discrimination claim   Management time of carrying out process 

It can sometimes be in all parties’ interests for an employer not to follow a textbook process, so it is always worth considering the legal and commercial factors set out in the table above, particularly in scenarios which look as though they could possibly end in dismissal.

Another way forward?

But, as many readers will know, there is another way. Sometimes opening a conversation about a severance package at an early stage can be a welcome escape route for an employee unhappy at work. In other cases, decisive action will be more important to the overall business objectives of an employer than compliance with every employment law guideline.

Why does following a process matter?

Following a fair process is an important part of achieving a fair dismissal. Successful employment tribunal claims for unfair dismissal can lead to a compensatory award of up to the lower of £83,682 and the employee’s annual salary, in addition to a basic award calculated based on the employee’s salary, length of service and age. Other remedies include reinstatement and re-engagement, but these are fairly rare. If other claims are involved such as breach of contract claims (in the Tribunal or the High Court), discrimination or whistleblowing, potential damages for these claims are uncapped. 

If businesses choose not to follow a fair procedure, then they should be aware of the potential financial implications along with the impact that decision could have on other staff members and from a public relations point of view. 

Concluding thoughts

Ultimately, it is a balancing act for HR practitioners to help employers to weigh the relevant factors mentioned in this article to determine the best course of action for each specific situation.

Please do contact us if you would like more information about our interactive Breakfast Club Workshops, or our wider training programme which we offer to managers and HR teams.