According to the Employ-ment Tribunal (ET) Service’s Annual Report 2005-06, 127,297 ET claims were received by employment tribunals in that year, whereas the number of claims presented in the previous year was 86,181.
Given the statistics it is not surprising that, according to a recent survey by the Centre for Effective Dispute Resolution, workplace conflict costs British industry £33 billion a year.
The number of discrimination and equal pay claims continues to rise year-on-year. In 2005-06, 11% of all ET claims included complaints of discrimination alone. In spite of the increases, these claims are still dwarfed by the number of unfair dismissal claims that continue to be made to the employment tribunals. Unfair dismissal claims are still, all these years later, the most "popular" type of claim, accounting for 21% of all ET claims in 2005-06.
The introduction of the compulsory dismissal and disciplinary procedure has caused difficulties to a number of employers, large and small, and has boosted the awards made to successful employees by up to 50%. Having got through the procedures unscathed, many employers then struggle to convince an employ-ment tribunal they acted fairly in all the circumstances.
In terms of complying with the compulsory procedures it is not uncommon, for example, for an employer to get to the end of a redundancy exercise, having applied objective criteria, consul-ted meaningfully and considered alternative employment, only to find that its efforts have not protec-ted it from a claim of automatic unfair dismissal, because it forgot that a redundancy is a dismissal and did not apply the correct proce-dure. Fixed-term contracts cause similar problems.
draw up a template
Too many of you are falling foul of the dismissal procedure by not making sure that well-drafted template letters contain all the required information and are used by managers.
Forgetting to tell an employee of their right of appeal is a common breach of the procedure. The line between an investigatory meeting and a dismissal meeting can become blurred. Not sending an employee a ’statement of grounds for action’ letter before what turns into a dismissal meeting is often a problem.
Here are some basic principles to protect your business:
1. Apply the dismis-sal and disciplinary procedures whenever you are contemplating dismissing or disciplining an employee.
2. Use template letters to comply with the procedures and make sure these are used by those who dismiss or discipline staff.
3. Ensure that the dismissal is for a potentially fair reason.
4. Get as much relevant informa-tion as is reasonably possible before you dismiss or discipline an employee.
5. Give the employee a fair chance to argue against dismissal or a disciplinary penalty.
6. Consider alternatives to dismis-sal or a disciplinary penalty.
7. Before informing the employee of your decision, take a step back and consider whether what you are intending to do is something a reasonable employer of your size/resources might do and consistent with your normal practice.
8. Keep written notes of meetings, as well as your investigations and enquiries.
Ray Silverstein is partner head of the London employment team at Browne Jacobson LLP