Disciplinaries need to managed fairly using the correct documentation and timescales. Staff should have the right to be accompanied and be presented with information relating to the allegations in good time. There should be a clear policy on Disciplinaries and any warnings issued should include the right of appeal.
Dismissal should only be taken as a decision when all other alternatives have been considered. In a case of Gross Misconduct it is often the only option, however in most other disciplinary situations, a member of staff should receive a written warning followed by a final written warning and then dismissal. Staff are entitled to a written statement of reasons for dismissal and the right to appeal.
Employees with over two years service have the right not to be unfairly dismissed. It is important that any issues with staff are discussed during their probationary period and that regular feedback is given throughout their employment.
Staff undergoing a process of performance management should be given fair periods to improve along with training and support as required. If necessary, formal warnings should be given along the way and dismissal should only be used as a last resort. However if the performance management process has been fair and transparent the dismissal is unlikely to be considered unfair should the case reach an Employment Tribunal.
According to Wikipedia, In employment law, constructive dismissal, also called constructive discharge, occurs when employees resign because their employer’s behaviour has become so intolerable or heinous or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to effect a constructive discharge.
The exact legal consequences differ between different countries, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to make claims against the employer.
The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident.
We recommend that organisations have Grievance policies in place so that employees can raise a grievance if necessary if the informal route has not enabled them to resolve any issues. The aim would be to avoid a claim for constructive dismissal, but there’s no guarantee.
Where professional relationships have broken down beyond repair a settlement agreement can be offered.
Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. They can also be used to resolve an on-going workplace dispute, for example, a dispute over holiday pay. These agreements can be proposed by either an employer or an employee, although it will normally be the employer.
Once a valid settlement agreement has been signed, the employee will be unable to make an employment tribunal claim about any type of claim which is listed on the agreement.
- Settlement agreements are legally binding contracts that waive an individual’s rights to make a claim covered by the agreement to an employment tribunal or court.
- The agreement must be in writing.
- They usually include some form of payment to the employee and may often include a reference.
- They are voluntary.
- They can be offered at any stage of an employment relationship.
Where the employer and employee are unable to reach an agreement, the settlement discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim. Where the settlement discussions are held to resolve an existing dispute between the parties they cannot be used as evidence in any type of claim.
Your HR Partner can provide bespoke Settlement agreements. For more information and to discuss your specific situation please contact Susie Kaye via Susie@yourhrpartner.co.uk
For more information see www.acas.org.uk