More often than not, employers end up facing Tribunal proceedings because their employees are aggrieved at the way their dismissals have been handled. It is important to get your internal procedures right because a mistake in how you go about dismissing an employee can lead to a successful claim even if you had good reason to dismiss. By setting out our top ten tips, we hope you can avoid the traps others fall into. After all, knowledge is King.
Tip 1 - Redundancy:
If you have seen a contraction in your business in recent months, you may well want to reduce your workforce. Redundancy is a potentially fair reason to dismiss under Guernsey’s employment laws. However, you also need to be aware of the Code of Practice on Handling Redundancy issued by the Commerce and Employment Department. A dismissal for redundancy is likely to be unfair unless you have consulted with affected staff, identified the correct “pool” of employees from which to select for redundancy and offered suitable alternative employment where available. A dismissal for redundancy will be automatically unfair in certain circumstances, including on grounds of pregnancy or trade union membership.
Tip 2 – Misconduct:
You can dismiss for a single act, or series of acts, of misconduct. To make sure you dismiss fairly you must believe the employee did the act complained of, have reasonable grounds for that belief and have carried out a reasonable investigation into the circumstances, including allowing the employee the opportunity to put their side of the story at a duly convened disciplinary hearing.
Tip 3 – Poor Performance:
Before dismissing on performance grounds, the Tribunal will expect you to have discussed reasons for poor performance with the employee, set targets for improved performance, supervised them against those targets, and given due warning that a failure to improve will result in dismissal. The Commerce and Employment Department’s Advisory Booklet on Discipline at Work sets out key points required of a fair disciplinary procedure.
Tip 4 – Sickness:
The key steps you should take before dismissing on sickness grounds are, first, obtaining medical evidence on the employee’s condition and prognosis and, second, consulting with your employee before taking any decision to dismiss. A report from a doctor who specialises in occupational health issues can be very helpful in establishing the extent to which it is reasonable to expect an employee to return to gainful employment where the illness is long-term.
Tip 5 – Constructive unfair dismissal:
This is the term used to describe a situation where an employee is forced to resign by reason of their employer’s conduct. More and more frequently, employees are relying on breach of the so-called “implied term of trust and confidence” in the employment relationship to bring a constructive dismissal claim. This could include negative comments about the employee, making the job impossible or failing to act even-handedly. You need to be alive to circumstances which could support a constructive unfair dismissal claim and be proactive in addressing complaints as they arise to avoid a claim of this type.
Tip 6 – Stress:
An employer who ignores signs of workplace stress can find itself liable for a number of employmentrelated claims including unfair dismissal, breach of health and safety laws and breach of contract. The Guernsey Health & Safety Executive recommends a five-step approach to risk assessment which covers identifying the hazards, deciding who may be harmed and how, evaluating the risks and taking necessary action, recording the findings, and reviewing your assessment periodically.
Tip 7 – Discrimination:
Guernsey law prohibits direct or indirect discrimination on the grounds of gender. Typically, it is the “indirect” discrimination provisions of the law which trip up employers. Indirect discrimination exists where an employer sets a particular requirement which disadvantages members of one sex more than the other, such as excluding parttimers (mainly women) from contractual benefits. Unless you can objectively justify the requirement, there is likely to be discrimination.
Tip 8 – Bullying:
If your employee complains of bullying at work, you should act quickly to investigate the problem. Investigations should be carried out sensitively and confidentially taking into account the feelings not only of the accuser, but also the accused. The person conducting the investigation should be someone with no prior involvement in the complaint (to demonstrate objectivity) and steps should be taken to protect the complainant pending the outcome of the investigation if necessary. This might include changing working arrangements or reporting lines, or suggesting a period of paid leave. If the complaint is upheld, appropriate action should be taken which might include changing working arrangements permanently and, if appropriate, instituting disciplinary proceedings against the bully.
Tip 9 – Who is “an employee”?
The right to claim unfair dismissal applies only to employees. The question of whether someone is an employee is not always clear-cut. An employee is someone who works under a “contract of service”. There is no simple definition of a contract of service and the courts will look behind any contractual documents to see whether the arrangement is consistent with an employment relationship. If you intend someone to be a consultant, not an employee, make this clear in the contract (it is surprising how often a consultant is described in contracts as an “employee” or “employed”). Avoid including them in your benefit schemes and make sure they deal with their own tax and social insurance. Also, keep an eye on the length of the relationship. As a general rule, the longer the arrangement, the greater the risk it will be construed as employment.
Tip 10 – Appeals:
A potentially fair decision to dismiss could become unfair by overlooking the right to appeal. So far as possible, any appeal should be dealt with by someone not previously involved in the case. This person should be at least at the level of the original decision maker and, if possible, outside the reporting line of the person who conducted the disciplinary hearing. An appeal should be dealt with promptly and fairly. A procedure for holding an appeal is set out in Commerce and Employment’s Advisory Booklet referred to earlier in this article.