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You're Fired! If Only It Were That Easy - Avoiding An Unfair Dismissal Trial

Nov 19, 2007
I think I speak for all managers around the country when I say that we have all, in our darker moments, fantasized about mimicking Sir Alan Sugar's catchphrase on 'The Apprentice' and telling an employee in no uncertain terms that they need to clear their desk and leave: "You're fired!" Nice as it is to be able to pretend it would be this easy to get rid of that typist who spends more time on the phone to friends than doing their job, or the office manager who pulls a sickie every week, the truth is that simply firing your staff in this unceremonious manner will lead to all the 'pleasures' of an 'unfair dismissal' lawsuit.

So how should we go about getting rid of staff who are bad for the company? There's a procedure you have to follow to ensure that your back is covered should the disgruntled sacked employee be feeling litigious and looking to call wrongful dismissal.

The first step towards this is ensuring that you have a clear set of rules and regulations. Afterall, if something is against the rules, but you've never actually explained it to your employees, then how are they supposed to know they are breaking them? At this point, you also need to be very clear of the consequences if such rules are broken.

There are two levels of misconduct you need to make provisions against: general and gross. Due to the different levels of seriousness, you need to make clear the action you would take in each circumstance:

General Misconduct

These are minor offenses or one-offs that would not result in serious repercussions for your business if occurring. The sort of thing that falls into this category should be: lateness, personal calls on the company telephone or under performance.

Gross Misconduct

This type of offense is for serious offenses which could damage the company, including acts of physical violence, drug or alcohol abuse, vandalism of company property, serious breaches of health and safety regulations, theft, fraud, harassment, discrimination or serious negligence. Additionally, the behavior listed in general misconduct could accumulate into gross misconduct if persistent while ignoring staff warnings.

So how do you go about ditching the troublesome staff? As I mentioned before there are procedures and you can't just go and make an example out of someone on the spot - well you can, but the chances are they'll be entitled to make an example out of you in the courts with a 'wrongful dismissal' lawsuit! Here's how it's done to avoid litigation:

1) If and when you become dissatisfied with the employee, tell them in writing.

2) Meet up with the employee and discuss the issue, trying to find a way in which the problems can be resolved. If possible, resolve the problem informally: You might consider training, or more supervision. Tell the employee the improvements you expect, and when their progress will be reviewed.

3) If an informal solution isn't possible, take formal action - first a written warning, and then a final written warning. These must explain the nature of the problem, what you expect to improve and the consequences if they fail to meet your standards. Explain they have the right to appeal against your decision and give them opportunity to explain themselves.

4) If they accept their right of appeal, arrange a meeting and hear their case. Tell the employee your decision.

5) If the employee fails to meet your requirements, you may dismiss them or offer them a different job. Once again you need to follow procedure: a written dismissal, meet with the employee and give them the opportunity for appeal.

It may seem like a lot of hassle, but in the long run it's better for employers to be able to resolve problems with their staff internally anyway. If you give your employees notice and they improve their ways, not only are you avoiding an unfair dismissal case against you, you are saving the costs and time involved in looking to hire a replacement for the sacked employee. Keep this procedure in mind, and avoid the Alan Sugar fantasies and the whole legal minefield that inevitably follows!
About the Author
Iain Mackintosh is the managing director of Simply-Docs. The firm provides over 1100 legal documents and templates covering all aspects of business from the new holiday entitlement laws to health and safety regulations.
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