The Importance of Procedure

In 1971, when the first laws relating to unfair dismissal were introduced the idea was that employees who believed that they had been unfairly dismissed would be able to present a claim in a relatively informal setting without the need to be represented by a lawyer.

I think most people would agree that this was a sound approach designed to protect the little guy.

However, things have changed dramatically since then. The protection afforded to employees gets more formidable with each parliament and employers are left in an increasingly crowded minefield.

A good example of this is the new statutory dismissal procedures that were brought in from October last year. These specify hoops that every employer must jump through before dismissing an employee.

Let me give you an example.

Sheila owns a relatively small hairdressing salon. She used to do the daily banking herself but a few months ago, one of her trusted employees, Kylie, offered to do it for her because Sheila was particularly busy. Sheila was grateful and increased Kylie’s pay to reflect her additional responsibilities.

Yesterday, Sheila had a disturbing call from her accountant, Jason. Jason told her that her accounts were not adding up and that £2,000 of takings has gone missing since Kylie took over the banking.

This morning Sheila, in a bit of a state, confronted Kylie about the missing money. Kylie denied all knowledge and said she had nothing to do with it. Sheila did not believe Kylie and dismissed her on the spot. As far as Sheila was concerned Kylie has stolen from her, lied to her and let her down. She believed that she could no longer trust her friend.

I think most of us would sympathise with Sheila. Unfortunately, if Kylie decides to take Sheila to an employment tribunal, Sheila will lose.

What Sheila should have done was to write to Kylie setting out what she was accused of and asking her to attend a disciplinary hearing. After the meeting, Sheila should then have written to Kylie, setting out her findings from the meeting and dismissing. Kylie should also have the right to appeal the decision.

Because Sheila did not follow the statutory procedure, a tribunal will find that Kylie’s dismissal was automatically unfair. To add insult to injury, as an extra punishment for Sheila, Kylie’s compensation could be increased by 10% to 50%.

It’s important for all employers to remember that the procedures will apply regardless of what the employee has done. Even if Kylie had admitted to Sheila that she had stolen the £2,000, Sheila still should not have sacked her on the spot.

The lesson to learn is that employers should never act in the heat of the moment. Managers who feel they need to be decisive and act immediately in response to perceived bad behaviour are very likely to pay for it later.

No matter what you think an employee has done, always take time to arrange a disciplinary hearing, let the employee have copies of all the evidence against them in advance and allow the employee to be represented at the hearing by a work colleague or trade union representative and give them the chance to appeal. Otherwise, even if you’re morally in the right, legally you will be in the wrong.

Remember that, at the moment, the little guy is very well protected!

Published 27/09/2006.