In a recent letter to the Guernsey Press, an employer complained that it would cost his employees nothing to bring an unfair dismissal complaint. Conversely, it could cost him thousands of pounds to defend a claim, possibly resulting in job losses, and even the loss of his company, if he hadn’t "dotted the ‘i’s and crossed the Tribunal ‘t’s".
Whilst there is a perception that employees are overwhelmingly successful in Tribunal claims in Guernsey, this is not actually borne out by the statistics. These show a relatively even split between successful and unsuccessful claims. This, though, offers little comfort to employers who find themselves paying out substantial awards for what appear, on the face of it, to be unmeritorious claims.
So what can businesses do to reduce the risk of a successful complaint being brought against them?
The first point to bear in mind is that in Guernsey the qualifying period for bringing an unfair dismissal complaint is 12 months. Although representations have been made by the Chamber of Commerce to increase this period to two years (in line with recent changes in UK legislation), the qualification period currently remains unchanged. If you have concerns over performance or conduct issues of a new recruit, it is important that you address them promptly and, if necessary, terminate the employment well before the 12 month deadline.
Secondly, you should bear in mind that the law limits the grounds on which you can dismiss an employee fairly. The five potentially fair reasons for dismissal are conduct, capability, redundancy, contravention of a legal restriction, and "some other substantial reason of a kind to justify dismissal".
Even if you dismiss for a fair reason, an employee can still succeed in an unfair dismissal complaint if he or she can show that you failed to follow a fair procedure before taking the decision to dismiss. There is no "one size fits all" in terms of a fair procedure. The Guernsey Tribunal will expect different types of procedure to have been followed depending on the reason for dismissal. The size and resources of the business will also be relevant.
Let’s consider, then, dismissals for gross misconduct, poor performance and ill-health.
An employee accused of gross misconduct should not be dismissed until a full investigation has taken place, followed by a disciplinary hearing at which he should have been given the opportunity to comment on the allegations against him and state his case.
An employee whose performance has nose-dived in recent months should be given the opportunity to improve before dismissal is considered. Her work should be monitored, and she should be given specific performance objectives and further training, if appropriate. Dismissing an employee for poor performance without giving her such support, or prior warning that her job is at risk, will almost certainly result in a finding of unfair dismissal.
And, contrary to popular belief, you can dismiss an employee on grounds of ill-health provided you have followed a fair procedure beforehand. This will include obtaining a medical report on the employee to help identify the root cause of the condition, consulting with the employee and exploring alternatives with him before taking the decision to dismiss. Such alternatives might include a phased return to work on lighter duties where the employee has been off sick long term, or, where short term absences have been caused or contributed to by the immediate working environment, reasonable adjustments to that environment (such as to a chair or desk where back problems are the issue).
Unfair dismissal cases are always very fact specific. However, a common denominator is that every employee who brings a complaint genuinely believes they have been unfairly treated. By adopting a fair procedure before taking the decision to dismiss, you are likely to reduce the risk of an employee bringing a complaint against you. And if a complaint should be brought, then you should be in a better position to defend it successfully.