Unl 3ir dismissal: an impedir ent to management?
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More often than not, it's the managers themselves, and their misunderstanding of their own function and the law, which represent the real impediment. Take a commonplace example:
Client: "... and I want this transport manager out today. He is useless,"
Solicitor: "... but has he had a warning ?" Client: "Well, no ...Oh, we don't have to go through all that do we ?"
Solicitor: "But I thought you said it was three years that this had been going on ?"
Client: "Yes, but we are a caring transport company and don't like to upset people."
That haulier will doubtless see the law as an obstacle to good, vigorous management.
However, the real issue is what that haulier has been doing about this long-standing poor performance. Has the issue been confronted? Has the employee been confronted? What action was taken to sort out the problem at an earlier stage?
There has been a failure of management when this sort of situation arises. The irony is that the law in this area has always recognised the right of management to manage. A finding of unfair dismissal is not typically a statement that an employer has no right to manage—it is usually a finding that the employer has not managed. Tribunals are directed not to substitute their own judgement for that of the employer. That simply is not their function. The law is not concerned with whether the employer's decision is right or wrong. It is concerned with the quality of the management process which led to the decision being made. The law starts from the point of view that a job is an asset. It says that the employee is not to lose that asset unless there is a reason, So, the employer must have a reason. There is no shortage of reasons. They are: • Conduct; • Capability; • Lack of qualification; • Redundancy; • Any other "substantial" reason. That just about covers everything except insubstantial, or trivial reasons. What employer seriously wishes to argue that it should be allowed to dismiss for trivial reasons or no reason at all?
Some reasons are not permitted. Some of these are controversial. Pregnancy dismissal is the current hot potato. Other more well-established reasons are dismissals for race or trade union membership or activity. These exceptions actually affect only a small minority of cases in practice. Given that the employer has a permissible reason to dismiss, the next question is whether the employer was reasonable in treating it as a sufficient reason in all the circumstances of the case.
The consolation prize here is the losing employer who says he lost "on a procedural technicality". It is probably more helpful to talk of process rather than proce dure because of the technical, nit-picking implication of that latter word.
What is the process by which the employee came to be dismissed? It is here that matters such as warning, enquiry, investigation, consistency and the like enter onto the stage. The chief misunderstanding with warnings is the mistaken belief that warnings "tot up" like points on your driving licence—"you must have an oral warning followed by two written warnings, followed by a final written warning ..." That is a fundamentally wrong approach. Warnings are there to bring home to an employee a problem with a view to getting the employee to perform as required and keep the job. They are not there to get the employee out of the job.
State of mind There is a curious state of mind which exists sometimes—the employer who did not warn because he did not want to dismiss, or upset the employee, or make the employee feel insecure. Reverse that thought process and you see that the employer who tackles the issue properly is the one who is being kind to the employee.The employee has the chance to get it right. What of "reasonable investigation"? The best managers make the best decisions but often because they have the benefit of best information. The best information is gathered by an open mind which is seeking to come to an informed decision expeditiously but not in haste.
Most managers understand deep down and recognise how they sometimes side-step issues rather than confront them.
Consider the manager who has already made up his mind and who does not wish to enquire in case argument or information conflicts with that state of mind, or threatens to divert him from the hard line already expressed to his colleagues. Consider the manager who hates personal confrontation and who just wants it all over and done with.
Consider the manager who is too busy to deal with the issue properly. The law seeks to prevent such shortcomings of weak or poor management. The employer who has followed reasonable process in arriving at a decision does not have to prove that he is right in that decision. Being right or wrong is irrelevant. The issue is whether the decision was one which a sensible manager could reach, not whether the tribunal would have come to the some decision. If the decision falls within a reasonable range, then the employee loses his asset without compensation, and all can see that the manager was managing.