PERSONNEL - 01.02.2006

Follow the procedure to the letter

Procedures are everything

If an employee makes a claim of, e.g. unfair dismissal, the tribunal will want to be satisfied that you followed the statutory procedures to the letter. Here’s an example of something that’s still tripping up many employers.

Invitation-only. Long before you can even think about dismissal you must write to the employee and invite them to a disciplinary hearing. This letter should also set out sufficient details of the complaint against them so that they can prepare their case. The meeting must take place before you dismiss them. Finally, you must allow them to appeal. If you fail to follow any of these simple requirements then any subsequent dismissal will be automatically unfair. This will be the case even if you do everything else correctly and have a valid reason to dismiss. Furthermore, the penalty for an automatically unfair dismissal of this nature can be a minimum basic award of four weeks’ pay, at a current maximum of £290 per week. In addition, if the employee wins a claim of unfair dismissal, and the employer has not correctly followed the statutory procedure, the tribunal must increase the compensation by at least 10% and may even increase it by up to 50%.

We heard of one employer who’d proved that an employee had committed gross misconduct. He verbally called the employee to a properly conducted meeting and ultimately dismissed him. The employer then discovered (to his cost) that the dismissal was automatically unfair simply because he didn’t write to the employee in accordance with the statutory procedure.

Tip. Make sure your disciplinary procedure has been amended to include the requirement to write to the employee in advance of a meeting.

For a free sample procedure visit http://companydirector.indicator co.uk (CD 07.08.07).

Basic statement

It seems that many employers are also failing to provide information relating to the disciplinary and grievance procedures in the written Statement of Terms and Conditions of Employment (often called the “basic” or “section 1” statement). It’s always been the case that if an employer fails to provide the correct information in the Statement, the employee couldn’t claim compensation. Under the new law, however, if an employee wins a claim of unfair dismissal and can show that they weren’t given these details, then the tribunal will award them more money. The level of award must be at least two weeks’ pay (cut off at the statutory maximum of £290) and could be four weeks.

Tip. All employees should either be given their own personal copy of your procedures or have access to them. In both cases get them to sign a document to say that they have read, understood and agreed to the procedures.

Moving forward

Finally, what can you do to salvage the situation? You can’t alter the fact that the dismissal is automatically unfair but you can reduce the amount of compensation you’ll have to pay by arguing that, if you’d followed the procedure correctly, the outcome would have still been the same. With any luck the tribunal will believe you and reduce the compensatory award accordingly.