Solicitors in Birmingham

GUIDE FOR EMPLOYERS IN BIRMINGHAM

Tips for employers on reducing risk when dismissing employees

The list produced below contain practical as well as legal tips, remember that each matter should be dealt with on it’s own terms and always following the test of acting within a “range of reasonable responses”. Overlook procedural fairness also at your peril, so always follow your own contracts, policies and procedures, refer to current ACAS guidelines and take advice where necessary.

• Don’t let problems fester, seek to deal with them at an early stage by firstly calling an informal meeting whilst at the same time flagging up the possibility of formal process if the issue is not resolved informally. If your business has a Human Resources function, bring the HR team in early.
• Any communications with an employee where there is an issue should be very carefully considered.
• Ensure that any issue you have with employees or which they raise is scrupulously documented, including notes of any conversations or meetings.
• Performance related issues are very common, so get into the habit of assessing staff performance proactively, which is generally good for morale but also ensures consistency of approach and a historical perspective to any performance related disciplinary or dismissal issues.
• Do not overlook the advantage of using probation for new employees and retain the right from the outset to extend the probation period based on legitimate concerns about new employees.
• Avoid the temptation to try to “manage out” a difficult employee. Not only willthis likely result in an even more hostile working environment, it could lead to more claims in the Employment Tribunal down the line. As hard as it may be, continue to behave objectively and as neutrally as possible towards disruptive or non-performing employees.
• With any sickness absence or claim of stress related illness, exercise a high degree of caution.
• Fully investigate all claims made by or against an employee and ensure all parties are given a full opportunity to state their case at a meeting before making any decision.
• Do not assume that an employee can be dismissed based on expiry of a fixed-term contract. This is not the case and before dismissing a fixed term employee a fair reason and procedure needs to be in place.

What is parental leave ?

Parental leave provides the right for parents to take time off to care for a young child or a child with a disability or to make arrangements for their welfare.

What are the qualifying criteria for parental leave?

Any parent who has completed 1 year’s service with their current employer is entitled to 13 weeks’ unpaid parental leave for each child born or adopted. It may be taken at any time up to the child’s 5th birthday. Parents of disabled children can take up to 18 weeks unpaid leave up to the child’s 18th birthday. Employees remain employed while on parental leave and the terms of their contract, such as contractual notice, still apply.

At the end of parental leave, employees have the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status as the old job. If the leave is taken for a period of 4 weeks or less, the employee is entitled to return to the same job.

What if an employee asks for emergency time off due to a family illness ?

All employees have the right to take a reasonable period off work to deal with an emergency problem involving a dependent such as a child, partner or parent. There is no set time allowed for this, although your employee handbook may state some guidelines.

How much holiday can my staff take?

Generally put, almost all workers above 16 (agency, temporary, permanent staff) are entitled to a minimum of 5.6 weeks of paid holiday/year.  Public and bank holidays can be also be included in this figure so long as those holidays are paid.  Whether they are entitled to any more time is dependent on a number of factors such as the type of employment, length of service etc.  Different rules are applied with respect to workers working a six day week.  To make sure you properly comply with the law, it is advisable to seek professional advice.

Besides legal compliance, you should also consider the general needs of your business and employees.  Making sure your employees take their full holiday entitlement will help to ensure motivation and productivity levels are kept high.  To avoid too many of your employees taking their holidays during busy periods (run-up to Christmas, for example), you should remind them of any outstanding holidays they have left and encourage them to spread their holidays throughout the year.  In seasonal industries, subject to the law, you might be able to set out rules as to when your employees can and cannot take holidays.

Long Term Ill Health

Dealing with long term ill health is very different to dealing with short term persistent absenteeism.

How should an employer deal with long term absence ?

• Keep in touch with the employee.
• If their condition improves consider if they can return to work.
• If they can return, consider offering them suitable alternative employment.
• Ask for information from the employee’s doctor (although be very careful that this is done through the employee who may or may not co-operate) and take into account what the medical practitioner says.
• Subject to employee co-operation, consider obtaining a medical opinion from an Occupational Health Consultant.

Can an employee be dismissed for long term absenteeism?

This can be legitimate legally on the grounds of incapability to do his or her job but it is crucial to deal with such a situation in the correct way, failing which a Tribunal claim may be brought and these types of claim can be very expensive. In considering any dismissal the employer must adopt a fair procedure in all the circumstances.

What steps might constitute a fair procedure before dismissal for long term sickness absence ?

• Check your company’s employment contracts, staff handbook and any policies & procedures and comply with them
• Check how similar situations may have been dealt with in the past and act consistently
• Document everything
• Consult with the employee
• Take steps to obtain the employee’s consent to assess his or her medical position
• Assess whether the employee may be classified as disabled under the Disability discrimination Act
• Consider the employee’s opinion
• Consider the possibility of offering alternative employment

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of the Disability Discrimination Act, and this should also be taken into account. If ignored, it can give rise to further claims.

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