Senior Partner Fletcher Day
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Avoiding discrimination when dismissing employees

9th Aug 2019
Senior Partner Fletcher Day
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Dismissing employees is never an issue to be taken lightly. Even if an employer is on solid legal ground, there is still the potential for reputational damage, particularly in these days of social media and viral stories.

If an employer is not on solid legal ground, then the potential consequences of an inappropriate dismissal can increase phenomenally. Unfortunately, however, there are times when employees do need to be dismissed for absolutely legitimate reasons.

This means that employers do need to be familiar with the correct process, especially when dealing with employees whose personal characteristics fall into protected criteria.

Make sure you are totally clear about the issue you are attempting to resolve

One way to think of this is to remember that you dismiss people for causes, not symptoms. Symptoms are what you notice and what alert you to the fact that there is a problem.

It is then up to you to discover the underlying cause and hence the appropriate next steps. Keeping this in mind at all times can help you to avoid acting in haste and regretting at leisure. For example, if an employee repeatedly exhibits disruptive behaviours at work, this may seem like an obvious and unarguable case for termination. It isn’t.

It is a symptom which may have a variety of causes, only one of which is a bad attitude. Others include conflicts with coworkers (which may not be the employee’s fault), physical illness and mental health issues. The first of these is not a protected criterion, but could be a source of reputational damage.

The second and third might qualify as a disability and hence be protected, plus your company might face a lot of embarrassment if it emerges that working practices at your organisation contributed to their condition.

See if remedial action can be taken

There are three good reasons for seeing if remedial action can be taken.

Firstly, it will help to keep you on the right side of the law.

Secondly, it may save you the cost of replacing an employee who has the capability to perform to the required standard.

Thirdly, it will send out a message about your quality as an employer, which could benefit you in other ways, including recruitment.

Obviously, remedial action has to be reasonable to both parties. Employers cannot insist that employees make changes to their behaviour while ignoring the fact that they may be exacerbating the problem, for example by giving the employee an excessive workload.

Equally, however, employees cannot expect employers to bend over backwards to accommodate changes which would have a significant impact on the work environment. For example, if an employee is part of a team which works shifts, then it might be appropriate to agree for the employee to have a period of respite from night shifts, but it could be highly inappropriate to agree that they would never have to do night shifts as this would presumably place a greater burden on the rest of the team.

Have written (and vetted procedures) and follow them

Smaller companies may not have the resources to employ full-time HR specialists or in-house lawyers, however, they can use both on an ad hoc basis to create robust procedures which can then be followed as necessary.

These procedures will need to be updated in line with any changes to the law, so it may be beneficial for companies to budget for some level of outsourced HR and/or legal support to ensure that, as a minimum, they are always kept apprised of any new legislation.

Companies may even want to consider paying a little extra for the option to have a third-party specialist work with them on more challenging issues, such as potential dismissals.

Make sure that all procedures are followed transparently and fairly

This point may seem so obvious that it is pointless to state it and yet it is surprisingly (and worryingly) easy to overlook, particularly if situations start to become emotional and even more so if employers start to look for “any excuse” to dismiss a troublesome employee.

There are two key points which employers must remember at all times.

First of all, it must be clear that an employee is aware of a policy before they can be accused of breaching it. What this means in practice will depend on context, however, employers may find themselves running into legal trouble if they base a dismissal on a policy which an employee was shown when they were hired but of which they were not reminded during the course of their employment and which they might, therefore, be reasonably assumed to have forgotten.

Secondly, employers cannot just turn a blind eye to breaches of a written policy, such as an internet-usage policy, until such time as they are looking for a convenient way to dismiss a difficult employee.

If an employer has any reason to believe that they may be accused of doing either of the above (or worse both), then they would need to take steps to publicise and enforce the policy and see if this had the desired effect before deciding whether or not to take any further action.

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