Employment Update for Small Businesses
March 2018

Dear Visitor,

This month we tackle head on the tricky and emotionally-charged issue of sacking people! Never pleasant, but sometimes surprisingly cathartic and good for business. Also, we give you an idea of what is covered under a retained service with Peter Etherington Employment Law Services (in addition to providing and maintaining all your HR documents).

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Regards
Peter Etherington
Tel: 01664 668164

www.etherington.co.uk

When is it a good idea to sack an employee?

What are the risks?

HR advisors, often try their hardest to avoid committing an employer to dismissing an employee – particularly when this is related to performance or sickness absence. But as a small employer, you often don’t have the time and patience to carry out a robust and long winded procedure, aimed at improving the performance of the employee in question, or to improve their attendance. Sometimes, it is pretty clear that the individual in question is not going to achieve what you want, or has become so unreliable that you just need to take them out of the equation.

Clearly this is not a decision to take lightly and there are always risks involved in dismissing an employee, no matter how short their period of employment (even putting aside the emotional and moral concerns that can arise). But at Peter Etherington Employment Law Services (PEELS) we take a risk-based approach to our advice. We explain the risks and potential costs involved, and let you decide whether or not they are worth taking. We also advise on ways of minimising the risk. For instance, if you want to dismiss someone for poor performance, who has less than two years’ service, they can’t claim ordinary unfair dismissal, but there may be some sort of discrimination claim they could bring in the absence of any clear reason for their dismissal. So one way to reduce that risk is to strike a balance between following the full blown disciplinary or performance management procedure, and just sacking them. So a much reduced disciplinary procedure, or even just a meeting at which they are dismissed and the reasons for dismissal clearly set out, combined with a well worded letter, can help a lot to avoid any subsequent discrimination claim having much chance of success.

Settlement Agreements

There is also a very popular and much less risky way of terminating employees, particularly when they have quite long service – by using a settlement agreement. This is a legally binding agreement which prevents employees bringing any of the most obvious employment claims (e.g. unfair dismissal, unlawful discrimination, wages claims, etc.) It is possible to raise the prospect of entering into a settlement agreement with an employee in a confidential manner thanks to a piece of legislation that came into force a few years’ ago that allows you to have a “protected conversation” with a view to reaching a settlement. The discussions cannot normally be used as evidence in any subsequent claim, should negotiations fail.

At PEELS we broker dozens of such settlement agreements every year, and almost without fail they prove to be very successful: the employer has a fixed cost and the certainty that the issue is finished with; the employee leaves employment on a “no fault” basis, sometimes with an agreed reference, and some money to tide them over whilst looking for a new job (or taking a completely new direction). Both parties are able to move on with a lot less stress than can sometimes be involved in the more “best practice” HR approaches.

Please contact us if you would like to find out more about these issues, or if you need support with a tricky employee.

What are the benefits of our retained HR support service?

When clients should seek support

Our retained service works best, when clients seek support and advice in a timely manner. By engaging with experienced employment law and HR practitioners, you can be confident that you are handling people matters appropriately and not setting yourself up for problems further down the line.

Here are some examples of times should get in touch and why:

Recruitment

  • When planning recruitment – PEELS can guide you in drawing up job descriptions, person specifications, adverts, and advise on the recruitment and selection process
  • When offering a job – PEELS can draft the offer letter for you and prepare an up to date written statement of employment for the new employee, as well as ensuring you are carrying out any necessary pre-employment checks (such as the right to work in the UK)

Performance Management

  • When you encounter any problems with staff performance or conduct (e.g. not meeting targets, poor attitude/behaviour, poor timekeeping, inability to meet required standard of work, etc.) – PEELS can advise you on how to best deal with these situations before they become too problematic, and ensure that any letters or other documentation are appropriate and legal
  • Disciplinary matters – PEELS will guide you through the process and can also attend disciplinary hearings to ensure they are run correctly. We will also draft/advise on all the associated documentation for you, including investigations (witness statements, investigation reports, etc.), letters inviting to the disciplinary hearing, written warnings, dismissal letters and so on
  • Grievances and Whistle-blowing – whether you receive an informal or formal complaint from an employee you should contact PEELS for support on how best to handle it

Sickness Absence

  • Frequent absence – if someone takes too much time off sick, this can be tackled even if it is genuine. PEELS will guide you through the best approach to fit the circumstances, in order to try to reduce absence or, if necessary, to help remove the individual from your workforce
  • Long term sick – it is always upsetting and tricky to handle when a long-serving member of staff has a serious illness or accident. PEELS will support you through this period, and advise on a number of routes you can follow to match your culture and to do what’s best for the business

Dismissal

Clients are encouraged to get in touch whenever they consider terminating someone’s employment, no matter the circumstances. Even if someone has worked for you for just one day, there are potential claims that can be brought, and, as explained in the article above, PEELS will take a risk management approach to the advice given.

  • Redundancy – there are processes to follow to make sure the risks of claims are minimised, and it is not always obvious what the correct approach should be. We have lots of experience of dealing with redundancies and will assist you all the way, whether you want to take a fast-track or more softly-softly approach. We can also provide other creative ways of achieving the outcome that would work best for you, such as negotiated settlements, and restructures

This is not an exhaustive list, and our advice to clients is to just give us a call whenever any issue arises related to staff and employment. Don’t worry, we have heard it all!

Our retained service is based on a flat monthly fee with no additional charges irrespective of the amount of work undertaken. Contact us to find out more.

New National Minimum and Living Wage Rates

Increases apply from 1st April 2018

The National Living Wage and National Minimum Wage rates are increasing as follows:
From £7.50 to £7.83 per hour for workers aged 25 and over
From £7.05 to £7.38 per hour for workers aged 21 to 24
From £5.60 to £5.90 per hour for workers aged 18 to 20
From £4.05 to £4.20 per hour for workers aged 16 and 17
From £3.50 to £3.70 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.