We always say that when you’re writing to an employee, particularly about a disciplinary or dismissal matter, you shouldn’t send the letter until you’re satisfied you could defend it in a tribunal. For an unfair dismissal case, the tribunal will ask itself a number of things:
- Had the employer investigated the situation thoroughly and fairly? (Whether for conduct or capability)
- Was the decision to dismiss fair?
- Was it within the range of reasonable responses open to the employer?
- Was it procedurally fair?
The phrase ‘reasonable responses’ has often been the subject of appeals brought before the EAT, particularly since the government’s cost-cutting measure of removing Lay Members from most employment tribunal panels. For ordinary unfair dismissal cases, an Employment Judge usually sits alone.
Technically an employment judge can order that he or she be joined by lay members, but in practice this hardly ever happens. As a result, many employers can feel that their cases are being heard by someone who most likely went straight from university into legal training, a firm of solicitors or as a barrister and then into the business of ‘judging’. How can such a person truly appreciate the realities of working on a building site or in a warehouse? In the past, lay members would provide the practical insight into what really is a ‘reasonable response’ within a certain type of sector. Not anymore (except in discrimination and other automatic unfair dismissal cases).
So what can employers do to help protect themselves?
- Make sure the procedure is right. Follow the ACAS Code, never dismiss on the spot, and always adjourn before giving a disciplinary decision. Write to explain your decision.
- Investigate thoroughly. If there’s a gap, find out why it exists. The disciplining officer can investigate further if the investigation is not satisfactory or if the employee brings new points to light.
- Be consistent. Have you given someone else a second chance for this offence recently? If so, what is different this time?
- If you do decide to dismiss, be clear what the reason is.
This may take a bit more time than expected, but it will be a lot quicker than the endless time taken up by preparing for a tribunal claim, and a lot cheaper than losing the case if you end up at a tribunal anyway.
The idea of lay members returning to ordinary unfair dismissal cases has been brought up again by a number of organisations: Trades Union tend to think judges are elitist and cannot give a ‘lowly worker’ a fair hearing (particularly from an ethnic minority),whilst business organisations see judges as legal experts eager to defend the ‘little man’ against corporations.
Whilst cost cutting needs to be made, many consider that the loss of lay members has been a detriment to the tribunal service. The good news is that Scotland may reintroduce them. The new devolved powers will likely give Scotland the ability to do this, and if they do so and it provides good results, this may encourage England and Wales to follow suit. A change of the Westminster government in May could also have an effect; watch this space.
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