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The Importance of getting the dismissal process right

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The Importance of getting the dismissal process right

No matter the reason for a dismissal, we always advise that our employer clients follow some kind of process to inform the employee of the situation and ensure they understand what is happening.

Communication, as we often say, is key to almost all employment and HR issues and to ensuring that there is minimum negative reaction from staff.

In this article, Chris Dobbs, Employment Solicitor at Frettens, outlines the importance of getting the dismissal process right and what can happen if you get things wrong.

The correct dismissal procedure

This is particularly important when trying to avoid claims for unfair dismissals. A dismissal can be ruled unfair by the Tribunal either on a factual basis (there was no reason for the dismissal) or procedurally (the employer failed to follow a fair process).

The second of these can often be managed by following procedures, ensuring the employee understands what is going on and given them an opportunity to express their side of events or perspective before terminating employment.

What can happen if you get the dismissal procedure wrong?

The London Central Employment Tribunal recently ruled on the case of Mr Harris who was handed his P45 one day after missing some regular check-ins with his employer. Mr Harris had worked for the company for more than 20 years when his employment was abruptly terminated in April 2020 when he was sent his P45.

As it happens, there had been a series of concerns about Mr Harris’s performance and conduct in the preceding weeks; he had been involved in more than one accident in his work van and had a period of unexplained sickness in the build up to the dismissal.

What did the tribunal find?

At Tribunal, the employer, Gainsborough Flowers, tried to argue that these were reasons for the dismissal, and in a sense, they are right; these things could well have been a lawful reason for dismissal.

Unfortunately, the Judge highlighted the complete failure to follow any process whatsoever and could therefore only find that the dismissal had been unfair.

Mr Harris was given no opportunity to defend himself or to explain his conduct. He was not even aware of the possible dismissal.

What can employers argue in this situation?

Employers in this situation do have one more bite at the cherry, however. The law allows them to argue, in this kind of situation, that the employee was also in some way at fault for the dismissal and that even if a fair process had been followed, they would likely have been dismissed in any case.

This is exactly what the employer did and while the Judge was very critical of their lack of procedure, he did also stress that Mr Harris had not helped himself by failing to communicate with his manager in the weeks prior to dismissal.

His award was reduced by 50%.

An Employment Solicitor’s View

Employment Solicitor Chris Dobbs says: “Employers should not rely on the contributory element described above. Whether the award was reduced or not, this was still a finding of unfair dismissal which need not have happened at all and it does not assist them in the time and money spent on defending the case. 

Communication is a two-way process but an employer should always try every means at their disposal to contact an uncommunicative employee before simply sending a P45 as notification of termination.”

Dismissal process Training

At Frettens, our specialist Employment Team offer a collection of tailored Employment & HR Training Courses.

These courses have been designed to educate & strengthen you and your staff’s knowledge of such issues.

If you’re interested in any of these courses, you can find our more here.

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Employment & HR Solicitors

If you have any questions following this article, or would like to speak to a member of the team, please don’t hesitate to get in touch with our bright Employment Experts.

Call us on 01202 499255, or fill out the form at the top of this page, for a free initial chat.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.