We held a client seminar on 18 November 2015 and used a case study to identify 8 smart ways to resolve disputes at work. Here is a summary of our advice:
1. Immediate dismissal
If you are having trouble with an employee you can dismiss them with immediate effect and pay them in lieu of notice before they reach 1 year and 51 weeks’ service to prevent them from bringing a claim for unfair dismissal. Beware that this milestone does not apply for many other claims such as discrimination and whistleblowing so if it is not a straightforward case then proceed with caution and do not dismiss an employee without following a fair procedure or taking professional advice.
Where there are serious allegations against the employee, suspension will allow you time to conduct a disciplinary investigation without the employee’s interference. The suspension will normally be on full pay and benefits and should not be imposed for longer than is reasonably necessary. The employment contract and/or staff handbook should give you the contractual right to suspend the employee and thereby avoid any ambiguity as to whether doing so is a potential breach of contract.
A balanced, reasonable and dispassionate investigation of the allegation(s) is important. Take statements from those involved and any witnesses and gather all relevant documents. Make sure you allow the employee to tell their side of the story. Not only will the Employment Tribunal (ET) expect this but if you conduct a fair investigation the employee may be less inclined to start proceedings in the first place. Allowing the employee to be accompanied to an investigatory meeting is not compulsory but doing so will help demonstrate a reasonable approach.
4. Overlapping Grievance and Disciplinary Procedures
During the disciplinary investigation if you get an indication that the employee might have grounds to bring a grievance then you should consider asking if they wish to invoke the grievance procedure. However, if the grievance relates directly to the disciplinary matter both issues can be dealt with concurrently. If they are not related then pause the disciplinary procedure to deal with the grievance first. If the employee does not wish to bring a formal grievance but has put you on notice of a potential problem in the workplace, such as bullying or harassment, then you have a duty of care to maintain a safe working environment for your staff and act accordingly.
5. Protected Conversation
This is a relatively new concept with the aim of reaching an agreement through a less formal process knowing that anything discussed between you and the employee cannot be disclosed in subsequent proceedings in the ET. The problem is that these conversations only provide protection to the extent that the claim is for unfair dismissal. If there is a hint of any other sort of claim, protected conversations will lose their confidentiality. Furthermore, they impose prescriptive timescales (usually 10 days must be set aside for an employee to consider an offer) and can therefore be drawn out and lack flexibility.
6. Without Prejudice dealings (WP dealings)
As with protected conversations, WP dealings whether in person or in writing are confidential and cannot be referred to in proceedings. The key difference is that in order for them to have effect a dispute must have already arisen between the parties. The smart way to have WP dealings is to run them in parallel with the open formal process. This means you do not lose momentum on either front and this can make settlement more attractive to an employee who might otherwise receive a disciplinary sanction. It is important to keep WP dealings completely separate from the formal process. One way to achieve this is to ask us to deal with the WP negotiations on your behalf leaving you free to continue with your procedures.
7. Acas Early Conciliation
Settlement at this stage can be relatively straightforward if it works. You will be contacted by an Acas representative before the employee issues a claim to see if you want to enter into settlement discussions. If you do, then a deal can sometimes be done quickly, drawing a line under the matter at fairly low cost depending on the amount of the settlement sum. The success of the process is not entirely within your control and can be influenced by the effectiveness of the Acas representative and the reasonableness of the employee.
Statistics suggest that many employees are put off by the modest ET issue fee so if you have a good defence then a smart approach would be to stand firm and not agree to an early settlement thereby forcing the employee to put their money where their mouth is and see if they issue the claim. If they do so then this does not prohibit settlement discussions from taking place, although we would usually recommend submitting your defence first to put you in the best negotiating position and ensure you do not run out of time as you only have 28 days to lodge your defence.
8. Settlement Agreement (SA)
There are rigid statutory requirements that apply in order for an SA to be legally binding. For example, the employee must have taken independent legal advice and you must obtain a signed adviser’s certificate as proof. If you are going to offer a financial incentive in return for an employee giving up their employment rights you must make sure that the SA meets all these requirements otherwise claims can still be brought against you and the settlement sum will have been paid in vain.
The benefit of a SA is that it can be a very effective and flexible solution to tie up a number of loose ends such as imposing post termination restrictive covenants, guaranteeing confidentiality and agreeing a reference. However, make sure the SA entitles you to get your money back if the employee breaches any of the material terms.