Co-operative human resources professionals disagreed with an employment lawyer on whether to fire an employee who failed to turn up to their disciplinary hearing, saying they would give them another chance.
Industry leaders argued they wouldn’t dismiss someone until they learn the reason for their absence during an employment law session at the Practitioners Forum in Manchester.
Darren Newman, director of InCompany Training, which gives employment law courses, suggested there would be no issue with sacking an employee who didn’t turn up to their own disciplinary hearing and can’t be got hold of.
Members of the audience said there might be a serious reason behind the employee’s absence, such as an accident, leading Mr Newman to praise their kindness.
Ethics aside – would firing an employee this way result in any legal problems?
Risky business
Delegates were advised to ensure their organisations have a coherent view on where they are standing in terms of ethos.
Mr Newman said talking about employment law is talking about risk; it’s trying to predict what a tribunal judge would make out in a particular situation.
But he disagreed that employment law is a minefield, adding: “There are risks but you should know what they are and where they are.
“If you have a clear idea how you approach tribunal risk and you follow your ethos in how you treat employees, then you should be reasonably confident in the way you approach tribunals.
“But that doesn’t mean you’re always going to win.”
Facing an unfair dismissal claim
Mr Newman said a fair employer should address poor performance at a low level and an early stage, and have that awkward conversation before the situation escalates.
If the case does reach an employment tribunal, consistency of approach and the set of values your co-op applies are two key elements.
“What a tribunal is looking for is that you’re giving the employee a good explanation as to why their ability is falling short,” said Mr Newman.
Related … Employment tribunal decides in favour of the Co-op Group
“Make sure they can respond and have an opportunity, time and space to do it, and have a representative. You need to make sure their responses are considered in good faith and not prejudiced.
“Very rarely two cases are similar and you need to take more factors into consideration, such as mitigating circumstances and characters of the employees involved.”
The tribunal looks at the elements of reasonableness, which are:
- Rational – Is dismissal based on a reason?
- Coherent – Is it possible to explain the reasons for dismissal?
- Predictable – Is the dismissal in line with similar dismissals in the past within the organisation?
- Proportionate – The tribunal will balance the needs of the employer against the impact on the employee.
Case study: Sacked for stealing £5
When looking at fairness in dismissal, the law is testing the reasonableness of what the employer has done.
Mr Newman recalled a case of an employee stealing £5 a few decades ago, when the note was worth more than it is today.
The employer had a ‘reasonable and honest’ belief after investigation that the employee took the money, he said, and the employee lost their job, despite maintaining innocence.
The tribunal’s role was to decide whether the dismissal was reasonable – and it concluded that the employer had grounds to dismiss the employee.
Mr Newman advised against detailed employment policies and procedures, saying they “should be written in a clear and simple way” to make following them more straightforward.
