Steps an Employer Must Take in Order to Dismiss an Employee Fairly - Essay Example

Executive Summary The paper is focussing on the steps which should be taken by an employer in dismissing an employee in a just and also fair manner. First and foremost the employee is given an improvement note if his performance is unsatisfactory and he is also not meeting the expected standards from the employer. The employer will then set out a meeting which will look into the timescale given to the employee for their improvement and this is kept in proper records. Secondly if the employee fails to make any further improvements he is given a first warning which is written and a final warning is also issued if the employee fails to make any improvements. It the employer is still not satisfied with the employees' performance or conduct he then dismisses the employee or he could even opt for other sanctions. The employee is then allowed to make an appeal if at all he wishes against the disciplinary action that has been taken against him and the employer listens to all the appeals and further gives his final decision. (Honeyball 2006) According to the legislation the employees have a right to receive free, fair and just treatment from their employers. Thus when it comes to dismissing an employee the employer should handle the issue procedurally and in an acceptable manner. The employer needs to also have a valid reason for dismissing an employee. (Deakin and Morris, 2005) Introduction A dismissal occurs when the employment for an employee ceases in a number of different ways and this could occur in different ways such as 1. The employee's contract is terminated by the employer with or without any form of notice 2. The employees fixed term contract expires and there are no chances for its renewal under the same contract. 3. The termination of the contract by the employee with or without any notice being given by the reason of the employers conduct. There comes a point in an organisation when it becomes really necessary to release an employee as a result of a disciplinary action or even because of an employee's redundancy. However whatever the reason that could be behind the dismissal of an employee there are general requirements as well as legislative procedures that should be followed so as to make the whole dismissal process free and fair. Similarly the decision making process in dismissing an employee should be very professional and there are some guidelines which are to be followed. (Honeyball 2006) Steps employer must take in order to dismiss an employee fairly If all the avenues have been explored and there is a very serious damage that is being done on the businesses as well as the workplace threw may lack any other viable option than dismissing the employee. The reasons behind dismissing an employee should be fair and also legal and three of these reasons could be applied potentially. 1. The employee's capability. If an employees' capability is affected by either sickness or even accident and they are unable to carry out their delegated duties thus affecting the proper functioning of the organisation, then they can be dismissed by an employer. If an employee is dismissal could be termed as fair if it is based on their capability or even their qualifications to perform the expected duties in an organisation. 2. The employee's misconduct. If an employee misbehaves in the work place then this could be proper grounds for his dismissal after proper investigations have been conducted. Similarly if an employee's conduct is not in line with the organisations code of conduct then this could also be a fair ground for the employee to be dismissed. 3. Other substantial reasons. Other substantial reasons could be considered to be fair enough in the dismissal of an employee by an employer. If an employers reason for dismissing an employee is substantial and it can be validated then the dismissal could be termed as being just and also fair. 4. Retirement. If an employee is dismissed based on their retirement schedule then this is considered to be a fair dismissal since the employees retirement is at hand. An employee cannot continue with their employment if they have reached their retirement age 5. The employee was made redundant. If an employee has been made redundant by various factors them an employer could dismiss him on such grounds since the redundancy affects the employees output as well as their performance in the organisation. In a situation whereby there is a genuine redundancy on the employee then this could be a fair enough reason for dismissing the employee. The dismissal on such grounds should then be very fair and it should involve the following; the issuance of a warning letter to the employee on the proposed redundancy, making proper consultations with the employees, applying the objectives criteria for selection fairly such as if there are more than one potential candidates for a specific redundancy and also making possible considerations on the possibilities of alternative employments for the selected employees. 6. The employments continuation will contravene some other laws. Similarly an employee's dismissal could be termed as fair if the employment of such an employee contravenes some other local laws such as the housing regulations and also the health and safety regulations as well as a driver losing his driving licence. Steps to follow in a fair dismissal Establishing proper grounds for dismissing the employee The first step that an employer needs to take in dismissing an employee in their organisation is establishing the proper grounds for dismissing the employee. For instance while dismissing an employee based on their performance the employer should validate that the employee's performance is below the expected standards. He could do this by following the employee's performance progress at work while at the same time keeping the proper observation records. (Head and Lucas 2004) Carrying out proper and also reasonable investigations The employer should carry out proper and also valid investigations on the employee so as to verify their reasons for either their misconduct or even sickness. The employer should in carrying out his investigations pursue an informal action by determining the facts and also whether the reason for the employee's dismissal could be helped in any way i.e. by offering some counselling to the employee. Informing the employee of their allegations as well as listening to their views The employer should then inform the employee of his allegations and he should also take a considerable amount of time in listening to the views of the employee. If the informal action fails and the employee has not made any further improvements then the employer pursues a formal action by holing a disciplinary meeting where the employer presents the reasons as well as the nature of the caution and he could also offer an allotted timeframe for the employees' improvement. (Pitt 2007) In this scenario the employer should then warn the employee that failure to making any improvements will result to a first warning which is written. The employer should a record of the meeting with the employee as well as avail a copy to the employee. However if the employee does not make any improvements as per the prior agreements allotted time then the employer should hold a second meeting with the employee. This meeting is meant to reiterate the employer's complaints as well as give the employee a chance to make the necessary explanations. If the employee does not then provide an explanation that is satisfactory at all then a first written warning is issued and this gives the proper details of the of the employers complaints together with the actions and the timescales when the problem could be resolved. As previously done the employer keeps proper records of the proceedings for the meeting as well as the copies of the written warning letters. (Pitt 2007) Following the elapsing of the given time and there is still no improvement on the part of employee there is issuance of a final written warning to the employee by the employer. This is also put in record as targets are also set and the employee is still given some more reasonable time for improvements. At such a point a dismissal could however be considered by the employer. In all the meetings consecutively the employer should set out in writing the alleged conduct and characteristics of the employee or the circumstances under which he considers dismissing the employee. Similarly all the meetings should take place before any actions are taken and the meetings should also not take place if the employer has failed to properly explain the reasons to the employee. If the employee still fails in making any improvements as previously agreed then the employer contemplates dismissing the employee as he carefully follows the statutory discipline and also the recommended statutory procedures. However this involves a there step process which includes 1. The written statement. 2. A formal hearing. 3. The appeal process. The employer can then decide on whether to give the employee another chance so that he could make any improvements. Similarly the employer could see it appropriate to dismiss the employee under such circumstances. The employer needs to inform his employee on the decision he has made and it should comply with the statutory rules and procedures giving the employee time and also notifying them on their right to make an appeal. (Pitt 2007) Allowing the employee to be accompanied at a disciplinary hearing During the disciplinary hearing the employee is given a chance to be accompanied by other people such as colleagues, legal representatives and also the union leaders. All through the disciplinary process the employees are given the right to be accompanied to all the meetings as well as to make an appeal to a manager who is not involved in the decision making of the disciplinary process. Giving the employee a chance to appeal against the decision made The employee is advised accordingly on their right in requesting a meeting so as to make an appeal based on the employer's decision. However this could happen after the sanctions have already been imposed and it is important that the employee informs their employer on his decision top appeal. If on the other hand the employee tells the employer that he wants to make an appeal the employer should then invite them for another meeting and the employee should then take all the necessary reasonable steps in going for the meeting. On the other hand the appeal meeting doers not have to take place prior to the dismissal or other actions are taken. After the appeal has been concluded the employer should then inform the employee on the final decision that he has made concerning the whole issue. Legislation Legally the employees are have a right to be treated fairly and also in a reasonable manner for instance if an employer dismisses an employee in a just and fair manner then the employer should have a reason which is valid for dismissing the employee and he should also need to have acted reasonably in the treatment of that reason as sufficient enough in dismissing the employee. Similarly the employer also needs to have acted in a fair and also reasonable manner in all the circumstances surrounding the employee's dismissal. (Deakin and Morris 2005) According to the employment Acts there are statutory dismissal procedures which have been set out and they must be followed by all the employers. For instance if an employee is to be dismissed because of the reasons relating to their health the employer has to follow the necessary procedures. It is also important that the employer avoids using the disciplinary procedure when handling the employee's absence issues that are related to an employee's sickness. The employer should follow the following procedures; 1. Find out why the employee is absent. 2. Make enquiries on the nature of their absence or the extent of their illness. 3. Make an agreement on monitoring the employee's absence over a specific period of time. 4. Make considerations on the employee's disability and any reasonable adjustments if there are any which could help the employee overcome their health problems. 5. If there is no improvement then the employer can then dismiss the employee. The statutory procedures All the employers are required to set out their dismissal and also their disciplinary rules as well as the statutory procedures which should be put in writing. The employers are penalised if they fail to issue the employees with the statutory procedures and if the employer is contemplating to dismiss an employee then he should follow these procedures. If the employer fails to follow the procedures he is automatically found to have dismissed the employee unfairly. (Hayward, Peters, Roussea and Seeds 2004) There are however several reasons in the new statutory procedures which could be followed in dismissing an employee and they include; The employees conduct The employee's capability The employee's redundancy (provided there are no obligations for collective consultation. The employees non-renewal of a fixed term contract An employee's compulsory retirement. In the above cases the employees should follow the statutory procedures in spite of their sizes or even other factors involved. Probation periods In dealing with the new employees who are still in their probation period's special arrangements are needed and thus the employer needs to quickly identify the employee's problems on their performance so that they can then take the necessary action in good time. It is virtually important for the employee to dismiss a new employee who is on probation within the first year of their employment. It is also reasonable to extend a probation period on the following terms. 1. That within the first four weeks of an employees start date the employer had raised some concerns through the correct disciplinary process and also started the notice of an improvement plan. 2. The employer has made a review of the improvement plan within four more weeks as well as made some targets which are to be reached by the employee by the end of the probation period and this should be properly documented also through the procedures for disciplinary action. 3. It is however not acceptable waiting until the employee finishes their probation periods so as to inform them that they are not of the required standards and that the employment is not working out very well. This will be viewed as an unfair dismissal despite the probation period unless all the proper procedures are followed. Conclusion In conclusion it is important for the employer to conduct a thorough investigation into a vase before making any hurried decisions on dismissing an employee. Similarly the employer should hold fair disciplinary hearings as well as allow the employee to appeal against any decision made. On the other hand the employer should make proper use of the warnings even if they are verbal or written and this should also be put into writing. Similarly the employer should be very consistent with the past practices and he should treat the joint offenders equally as well as consider other alternative actions such as demotions or even trainings. Bibliography Deakin, S. and Morris, G. (2005): Labour Law, 4th Edition, Oxford, Hart Hayward, B., Peters, M., Roussea, N. and Seeds, K. (2004): Findings from the Survey of Employment Tribunal Applications 2003. Department of Trade and Industry London, Head, J. and Lucas, R. (2004): Does individual employment legislation constrain the ability of hospitality employers to hire and fire International Journal of Hospitality Management, Honeyball, S. (2006): Unfair dismissal, Labour Law. Oxford, Oxford University Press. Pitt, G. (2007): Discipline and dismissal, Employment Law. 6th edition, London Sweet & Maxwell Read More