Staff dismissals, by Eoin Fowell, Partner
I often like to ask at seminars how many managers have ever successfully dismissed someone for poor performance.
Generally only one or two hands will go up, which comes as no surprise.
Even if they have the HR support to go through such a process it will usually take several months. It is demoralising for the employee and awkward for the manager. All too often the extra supervision is perceived as bullying, and it ends in the employee being signed off sick.
Even if all goes well, at the end of the process the employee is given notice, so it takes a lot of management time, expense and patience before someone new can be brought in.
In most cases poor performers are simply given a compromise agreement providing for a severance package.
This is a political issue as much as a legal or practical one. The question of where to strike the balance between economic performance and employment protection is a running theme – whether to adopt an American-style model of hire and fire, or a more European, jobs-for-life approach.
There was breezy talk of adopting a more American approach, with the publication of the Beecroft Report, recommending "no-fault dismissals".
This received a dash of cold water from the Business Secretary Vince Cable, and consultation proceeded on a watered-down version – Protected Conversations – the idea that employers could be free to have a full and frank exchange of views with their employees about their work, without it being brought up in employment tribunals.
This too has been diluted, but an important change has taken effect from July 29. From now on employers will at least be able to raise the subject of parting company, without it being rejected and then brought up at an employment tribunal. ("This process was a sham – they tried to pay me off at the outset!")
The key point is this: even if the offer is rejected and no deal is done, no discussions about settlement agreements (as they are now known) can be used in evidence in an unfair dismissal claim.
There are some limits, though. Employees can still bring up these offers in relation to dismissals for whistle-blowing, trade union membership or otherwise asserting a statutory right; or where the employee has a discrimination claim of any sort, but for the normal, run-of-the-mill, situations the employer is protected.
For more advice or information on employment law, please contact the Employment Team at Wolferstans on 01752 663295.