Dismissal for Some Other Substantial Reason

We want to get rid of a sales employee who has been with us for about 3 years but it is not really for a performance or even a conduct issue.  The employee meets his targets but is not liked by some of our key customers and we are worried that if this dislike continues we could start to lose business.  We have nothing in writing but some of the customers have spoken to our Sales Director about this issue.  The issue is simply down to the fact that our customers like to have a bit of a laugh and joke with the people they do business with.  He is not perceived as having much of a sense of humour and on our corporate hospitality days with our customers he has failed to build up any rapport. He tends to keep himself distant from the rest of the sales team but no one is complaining about him in-house.  We believe it would be better to dismiss due to conduct but with the fall back of capability.

Peter replies:

As you have identified this is not really a capability or conduct issue. Dismissal for Some Other Substantial Reason (SOSR) is a potentially fair reason for dismissal. It is widely seen as an important residual or “catch-all” category of dismissal, intended as a safety net — enabling employers to sweep up reasons for dismissal that do not fall conveniently within other categories. The label has been held to apply to dismissal in a variety of situations, including:

  • Re-organisations leading to dismissals arising out of (usually changes to terms and conditions), which fall short of constituting a redundancy.
  • Dismissal of temporary employees who are replacing employees medically suspended or pregnant. Individuals should always be advised of the temporary nature of the job.
  • TUPE dismissals for a genuine economic, technical or organisational reason entailing changes in the workforce.
  • Dismissals at the behest of third parties and to situations where an employer takes action to protect its legitimate business interest.

It is often regarded as a useful category of dismissal for senior employees whose leadership failings do not fall neatly into either the “conduct” or “capability” boxes. It has also been a useful category for dealing with particularly troublesome employees who are unable to get along with their colleagues. The clue is in the term, it has to be substantial and not just whimsical, trivial or capricious. Dismissal still has to be reasonable which means that some effort ought to be taken to effect an improvement and to consider alternatives to dismissal.

As always, the employer must follow a fair procedure in dismissing the employee under the SOSR label. There is case law where dismissal of a Finance Director for having an ‘awkward personality’ was held to be fair despite a lack of warnings.  In this case, however it would be wise to raise the issue with the employee to see if he is prepared to commit to changing his approach to customers. If he is not prepared to acknowledge the problem, then having a structured protected conversation and offering a settlement agreement might well be the best approach. If he does not accept that proposal, then follow a fair procedure and give him his full entitlement to notice or payment in lieu of notice assuming that the problem does not go away.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Fixed Term Contract Termination

We took on a person to do a fixed term contract for a four month period. We reached three months and it was clear that there will be no work for them after the 4 month limit. We thought about just telling them on the final day that they would not be extended but decided that we ought to treat this as a redundancy so have put all the people in that section at risk whilst we conduct a formal redundancy selection criteria exercise. Our other staff are now complaining about this.

Peter replies:

You really have gone from one extreme to another. You were right to avoid just letting the person go because ‘their notice period started on day one’ but this is not a situation which calls for the formality/stress of a redundancy procedure.

The fair steps for employers to take when dealing with the end of  a number of long term fixed-term contracts might include  the following stages as part of a redundancy or dismissal procedure, although the procedure would be adapted to different circumstances:

  • A reminder. A reasonable period before a fixed-term contract is due to end it is advisable to remind the employee in writing of the potential end date.
  • A meeting. Before the end date a meeting should take place with the employee in which they are reminded that the contract is due to end on the given date. This meeting should be followed up by a letter which confirms the risk of dismissal at the end of the fixed term.
  • Suitable alternative work. Any vacancies should be considered and offered to the employee before the end of their current employment if they are suitable.
  • Dismissal. A reasonable time before the scheduled end of a fixed-term contract, a dismissal notice should be sent confirming the expiry of the fixed term and including information and the right to appeal.
  • Appeal. Fixed-term employees can appeal against notice of dismissal on grounds of redundancy.

Employees on fixed-term contracts which end are entitled to a statutory redundancy payment if they have worked continuously for the employer for the qualifying period of two years.

It is not necessary to follow the structure contained in the Acas Code of Practice on disciplinary and grievance procedures, but in some circumstances it is good practice, even though the Code does not specifically apply to non-renewals of fixed-term contracts (or to redundancy dismissals). Following the Acas procedure when a fixed-term contract expires has some benefits. Employers need to be careful; and the prudent employer will continue to follow a procedure which encompasses at least the three main steps applicable under most procedures (that is letter, meeting, appeal) to try to reduce the risk of any claims. In many cases, the employee will be aware that the employment may not be renewed and may waive their right to a formal meeting under the procedure offered by the employer.

You should therefore withdraw the redundancy consultation process with as much grace and dignity as you can manage, or conclude it quickly and do what you can to restore trust and morale.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Maternity Leave and Keep in Touch Days

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We are really displeased that a key employee is wanting to take her full 12 months maternity leave, so we have told her we expect her to come in to do the payroll for us one day each month, and we will call them KIT days.

Peter replies:

The law does encourage employers and employees to stay in contact with each other during maternity leave. Prior to the introduction of Keeping in Touch (KIT) days in the Work and Families Act 2006, it had not been possible to do so without bringing the leave to an end, or losing maternity pay.

An employee who is on maternity leave can work for her employer for up to 10 days by mutual agreement. Important points to note include the following:

  • The employee can go in for one hour or a whole day – this will still be a Keeping in Touch day.
  • The decision to undertake a KIT day must be made by agreement between the employee and the employer.
  • The days can be taken singly or in blocks
  • The employer has no right to demand that any such KIT work is undertaken, and the employee has no right to undertake such work.

So there is no obligation on either party to agree to the days, which means that neither party can insist on work being carried out. Furthermore if a woman is dismissed or otherwise penalised for refusing to do such work, she can claim automatic unfair dismissal or unlawful detriment.

It is all a matter of agreement, neither party can demand or insist. Reasonable contact can be made from time to time by the woman, or the employer to discuss arrangements for her return by asking about KIT days. By maintaining a minimal, but regular, presence during maternity leave – again bearing in mind there is no obligation for the employee to do so – staff can stay abreast of important workplace issues. This provision can make things easier for both the organisation, and the employee. It will allow a smoother reintroduction to the team, without employees having to hit the ground running after a long period of absence. The rate of pay is always a matter for agreement between the employer and employee, and may be provided for in the employment contract, or as agreed on a case-by-case basis.

Your actions are close to amounting to a detriment, and could even result in a claim for constructive dismissal, or discrimination on the grounds of sex or pregnancy/ maternity. You therefore need to apologise for your ‘expectation’ and seek to persuade her that it would be good for her to keep in proper contact with the world of work. This should be done in a much more friendly and constructive way than your first attempt.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Long Term Sickness – Automatic Dismissal

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We have a policy and it is also in our contracts of employment which say that we can dismiss after 26 weeks of continuous absence from work.  We are considering dismissing someone and they have said that this would be no defence to a claim for unfair dismissal and disability discrimination. Our wording is very clear and it has never been challenged before.

Peter replies:

Such a policy or contract term will mean there is no breach of an express term of the contract should dismissal occur, but it will not necessarily mean that the dismissal is fair or otherwise safe. As well as contractual terms, employers should also be wary of the implied duty of trust and confidence. Relying on out of date documentation, just because it is in the contract, is invariably a very unwise approach.

In considering the issue of fairness, a tribunal will consider the process followed by an employer. In managing long term sickness absence, it is always prudent for an employer to seek medical advice, and to consult with the individual.  Doing neither is a recipe for a successful unfair dismissal claim. If you have not been communicating with them regularly, you are already on the back foot and you should have been focussing on what might be done to get them back to work.

Getting good medical advice will also help with your efforts to assess whether the employee’s condition amounts to a disability, in accordance with the disability discrimination provisions of the Equality Act 2010. If a medical report identifies a disability, employers have a duty to make reasonable adjustments. This duty is broad and could cover physical adjustments to premises, or the provision of equipment to assist them in carrying out their duties. It can also mean adjustments to the role itself, by removing certain duties and reallocating them, changes in hours or place of work, or providing further training and supervision. It might also involve transferring to another vacant post. Losing a discrimination claim is usually very expensive.

Good managers will be aware of their legal responsibilities to make reasonable adjustments for disabled people, and that the duty does not stop with the return to work but continues as the situation changes. Very good managers will do this regardless of whether or not the employee fits the convoluted legal definition of ‘disabled’, just because they want to do the right thing i.e. good people management.

You need to get early advice, preferably from an Occupational Health professional rather than their GP; keep talking to them, and considering their wishes and realistic expectations. You may ultimately decide to dismiss (with notice), but it will be on a much safer basis than you are currently working from. You should also review all your contracts and policies for similar outdated wording.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Premature Action

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We are thinking of dismissing someone due to gross misconduct. We have suspended the employee, but it is likely to be at least a week until they are dismissed. Her line manager has just placed an advert for a replacement on our website, could this be said to be a bit premature?

Peter replies:

It is very much premature and could be potentially fatal to the defence of an unfair dismissal claim assuming she has over two years service.  Even if she has short service such an advertisement implies acting in bad faith.

One of the key factors, which determine whether a dismissal is likely to be found to be fair, is that the decision maker approached the matter with an open mind. It is a part of natural justice. Imagine how you would feel if you found out that a decision had already been taken about you, when you thought that the decision-maker was going to listen to all of what you had to say, before carefully weighing things up. Advertising for a replacement suggests that only one course of action is possible i.e. dismissal, hence creating a vacancy.

Biased decision makers, who approach a problem with only one solution in mind, are highly unlikely to succeed with defending an unfair dismissal claim.

You should immediately withdraw the website advert and hope that no-one noticed it! You might be able to justify recruiting someone on a very short-term basis to cover their absence, but you would need to be able to defend your actions and show that the need was urgent, and very definitely for a temp, with no indications of permanency.

You will then need to be scrupulously fair in your handling of the disciplinary issue to further reduce your risk. This means not only being very thorough with your investigations and the disciplinary meeting, but carefully reviewing the nature of the penalty. Just because you are calling it gross misconduct does not mean that a Tribunal will see it the same way. It will need to be sufficiently serious to strike at the root of the contract, and fundamentally undermine the trust and confidence you need to retain them in their job.

Furthermore tribunals will consider whether dismissal is the appropriate response, or whether a transfer or demotion or some other such penalty would have been correct. A tribunal will probably not interfere, but you cannot just jump from a finding of gross misconduct to summary dismissal, without further thought. Factors to consider include:

  • previous record,
  • length of service
  • any mitigating circumstances.

The tribunal will judge the reasonableness of the employer’s decision to dismiss, on the standard of a “band of reasonable responses”, assessing whether the employer’s decision was one which falls outside the range of reasonable responses of reasonable employers.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

DBS Checks

We have to do enhanced DBS checks for our staff given the fact that we work with vulnerable adults in a care setting.  We interviewed a man in his mid thirties who, in many ways, would be ideal for the job, however he disclosed at interview that he had been given a caution for a minor theft when he was a teenager, and at 19 he was convicted of driving without insurance, he was given a fine and banned from driving for 6 months.   I said to him that we could not employ him as a consequence, as those two convictions will appear on his DBS check.  We are right surely in taking this approach?

Peter replies:

If he is otherwise ideal why would you not want to employ him? One in three men under the age of 30 has a criminal record and the social consequences of not employing many of these men are colossal. Many employers will be employing people with a criminal record, and are blissfully unaware of this, and even if they found out would just shrug their shoulders and say “So what, he is doing a great job and we trust him”. Everyone deserves a second chance.

Nacro (the crime prevention charity) recommend that it is good practice for employers to have regard to the following factors:

  • whether the conviction (or other matter revealed) is relevant to the job in question
  • the seriousness of the offence
  • the length of time since the offence was committed
  • whether there is a pattern of offending or other relevant matters
  • whether the applicant’s circumstances have changed since the offending behaviour
  • the circumstances surrounding the offence
  • the explanation offered by the individual involved.

Nacro recommends that employers do not have a blanket ban on employing ex-offenders, but instead carry out a risk assessment, which is relevant to the sector, position and situation. We would concur with this approach.

It is important to maintain an open, non-judgemental attitude when undertaking this risk assessment. The aim of this procedure is to ensure that the applicant receives a fair and objective assessment as part of the employer’s commitment to preventing unfair ‘discrimination’ against ex-offenders.

The safety and well-being of your service users, staff and other stake-holders should be the overriding priority at all times You will also be seeking to maintain the reputation and good standing of your employees, and your reputation as a business. You must be careful, but should not be too risk averse. Presumably like any other employee he will be on a probationary period, so they will have a chance to prove themselves, and you will have a chance to assess just how good they are at the job.

You should also think about developing a policy to guide your future actions and getting advice from support organisations such as Business in the Community.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

 

Not Quite Retiring – Part Time

I have two senior members of my organisation that want to retire. We would like them to undertake roles as consultants for a few months following their retirements to provide expert consultant help on a  part time basis (a day or so a week). They are happy with this solution as they feel it will support their transition into retirement.

Neither want to be contractors and deal with their own tax returns/ invoicing us etc. but instead are asking for part time, fixed term contracts. Whilst I would like to support this, I also want to protect the business and ensure that no previous service will count should we find ourselves in a redundancy situation. I have constructed a contract that states that no previous employment with the organisation will count as continuous service. There will be no actual break, other than a week off.

Peter replies:

One of the legal dangers is that any agreement now to have a gap, and then restart employment has risks. Clearly you are all happy now and no one is thinking this could go wrong – but it could do so.

Even if the gap were longer than 1 week, the break may not be effective, because there is a clear intention that they rejoin you. This is likely to lead a Tribunal to conclude that the overall intention was to ensure continuity. In theory if the employer does wish to re-employ the redundant employee, but also wants to ensure that his or her continuity of employment is broken by the intervening redundancy, there should be a clear calendar-week break (starting on a Sunday) between the termination of one period of employment, and the commencement of the new period.  But this will only work, provided that there has been no agreement between the parties to preserve continuity. The existence of a contract suggesting no continuity will not unduly sway a Tribunal. They are obliged to follow the rule that, it is not possible to enter a contract which deprives an employee of their statutory rights. There is also a statutory presumption in favour of continuity, so you would have an uphill battle.

It is the Employer that wants them to stay, rather than the employees pushing for it, so if it did ever get to a redundancy stage, then it feels fair that they should benefit from any redundancy pay due. Remember that redundancy pay would be based on their new part time earnings, so at one day a week it might not actually be that much money from your point of view. It is worth doing the sums to see what the reality is. I would guess that these employees are trusted and respected as you want to retain them, so a bit of redundancy money (which might never occur) is a small price to pay and also avoids any messiness/deceit/ambiguity about whether they have really had a break in service.

Give them the part-time fixed term contracts they have asked for, so that they are happy, and there is a logic for either party to withdraw honourably, should it not quite work out as hoped for.

If you want a more water tight situation, where you do not risk later potential claims of continuity of employment, make sure there is a clear break of about a month in their employment before considering inviting them back on a part time basis.  Also, make sure there is no paperwork, or email trail, that records what has been agreed in advance, and draw up the new part time contracts after the break in employment.  

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

AWOL Employee and Duty of Care

My uncle recently committed suicide. When I called his employer to inform them, thinking he had just not turned up to work only that day, they said he had been AWOL for 3 weeks and they had dismissed him in his absence. When I asked why they had not called his next of kin/emergency contact (which was my Dad) they said:

“There was no emergency to the knowledge of the managers. When an employee does not arrive at work we do not get in touch with the individual listed as an emergency contact as those details are for emergencies only, such as serious accidents at work where the employee is hospitalised. We need to respect our employee’s privacy; when gathering employee’s next of kin/emergency contact details we make it clear that we will only use these in the event of an emergency.”

Sadly my Uncle had been lying to us about how he was feeling and we had no idea he had walked out of his job. Are they right not to have made contact with his next of kin?

Peter replies:

We commiserate with your loss and are shocked at the employer’s actions. We agree that the first action of an employer who has not heard from a missing employee should not be to contact next of kin, unless there is ‘history’, but it should not be ruled out. It is important not only to understand why the employee has not attended work; it is part of our duty of care. Hiding behind data protection or confidentiality is missing the point.

It is a sad when employees feel unable to declare mental health problems to employers for fear how this may be perceived/treated, and that the assumption made of people when they go AWOL is that they are just being awkward. The employer should at the very least be examining their wellbeing policies (and their consciences). It is all very well to say that they respect employee privacy but their actions were taking this principle to extremes.

The problem of employees going off on sick leave, and then failing to return, in spite of repeated attempts by their employer to contact them, is one with which many employers are familiar. It is not unusual for us to get calls from employers concerned about someone not turning up. Often it is a false alarm, but sometimes people are found to be very ill or worse. It is important to make every attempt to contact the employee, ask work colleagues if they know what is going on, then the notified contacts and ultimately we might suggest someone gets in their car and knock on the door.

Unauthorised absence can be deemed fair grounds for dismissal, but to avoid employment tribunal claims and the negative public relations of getting it all wrong, it is best to be thorough and open minded. Before dismissing a member of staff, employers need to demonstrate first that they have taken all reasonable measures to contact them to ask whether they wish to resign, and communicate the intention to dismiss them if no response is received by a certain date.  It is very  important to keep records of all attempts, as failing to show that you have made insufficient effort to contact your employee can leave you open to claims for unfair dismissal and disability discrimination later on.

If you find out that the employee has not received your letters and you do not have a forwarding address, try to contact the employee, by different means. Communicate by sending the message by text or email (potentially finding the contact details via a social networking site). Although it may not be best HR practice to use electronic means to communicate, it is effective and needs must. If you have been unable to make contact, and nobody at work has any knowledge of their whereabouts, you should use the employee’s emergency contact details to try to get hold of a family member or friend.  If you are genuinely concerned about your employee’s wellbeing, you might want to file a missing person’s report.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Dismissal for Gross Misconduct and Accrued Holiday Pay

We have recently dismissed someone for gross misconduct. We paid no notice or holiday pay, because there is no need to pay in lieu of accrued holiday. They have appealed against the dismissal and stated that we cannot deduct holiday pay as they have earned it. We believe the law allows us to do this, because their actions broke the contract.

Peter replies:

An employee who is dismissed part way through a holiday year, is entitled to pay in lieu of untaken statutory holiday that has accrued, up to the date of termination, under the formula set out in reg.14(3) of the Working Time Regulations 1998. This applies unless a relevant agreement specifies the sum that will be paid. This is the case even if he or she has been summarily dismissed for gross misconduct. The individual’s contract may, however, specify that any contractual holiday over and above statutory entitlement will be forfeited, if he or she is summarily dismissed.

It used to be that you could withhold holiday pay, but the case of Witley and District Men’s Club v Mackay in 2001 ruled that this was not compatible with the Working Time Regulations. In that case it was written into their rules, but the Employment Appeal Tribunal held that an employee is entitled to be paid in lieu of annual leave accrued, but not taken, at the time their employment ends. They decided that an agreement not to pay the minimum statutory annual leave accrued, under the WTR on the termination of an employee’s contract of employment, was void.

You should therefore hear the appeal and as part of that process confirm that he/she will be paid for statutory holiday entitlement.

Employment Law is not static and often changes, due to judicial rulings like the one above.  It is always best to check, or seek advice, before proceeding down a course of action based on previous knowledge, to make sure you are acting in accordance with the current law.

 
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Manager Dangerously Unconcerned

One of our older employees is becoming less reliable in his attendance.  His manager recently told him “Your health is not my concern. If you cannot cope, go out and get a job with Tesco or B&Q.” The employee is very upset.

 

Peter replies:

 

Such a comment would probably justify an Employment Tribunal Claim for constructive dismissal, and despite the difficulties of bringing a successful claim, this one may well succeed. A constructive dismissal occurs where an employee terminates their employment in response to their employer’s treatment of them. Although there has been no actual dismissal, the treatment is sufficiently bad that the employee is entitled to regard themselves as having been dismissed. It is effectively gross misconduct by the employer because the behaviour has breached the term of mutual trust and confidence that is implied into all contracts of employment. Employers have a duty of care for the health, safety and welfare of all their employees and the manager’s insensitive comments suggest he wants him to leave and really does not care about his health problems.

 

Furthermore you may well be facing an age discriminations claim as there is an implication that the health issues are age related and by further implication that the manager thinks that the employee is ‘past it’. As Tesco and B&Q are well known for their willingness to employ older workers, then it looks like very much like your manager was motivated by prejudice against older people, which will be difficult for him to disprove.

 

Focus on trying to show the organisation’s trust and confidence in the employee by talking to him, and reassuring him that he is very much valued. You must be genuine as the employee and a tribunal will recognise the difference between a cosmetic communication and one genuinely designed to reassure. You could remind him of the organisation’s Grievance Procedure and your Dignity at Work Policy, but would be better engaged in asking him what he wants. In our experience most people just want the behaviour to stop or never happen again and some value a sincere apology. If he wants better understanding and support in relation to his health issues then do what you can to assist which may mean using Occupational Health professionals to gain better insight and advice on what can be done in practical terms.

 

Once the situation has been resolved, it would be a good idea to have a ‘serious talk’ with the Manger about his actions, and the potential impact they could have had on the organisation.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

 

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