The wrong stuff
Page 42
If you've noticed an error in this article please click here to report it so we can fix it.
Not every employee turns out to be the right stuff, but operators should think carefully before dismissing staff. Conversely, employees should know their rights, limited though they are in UK law.
Trade Union power has dwindled into near non-existence over the past 15 years and employment law offers little protection to employees.
As a result there are few legal requirements that employers need to fulfil when dismissing an employee. No written or verbal warnings are required, although written contracts of employment are binding under common law and an employer or employee can be sued for not adhering to it.
Both employer and employee have the right to a minimum period of notice. Employees also have the right to demand a written statement from the employer giving the reasons for dismissals. This must be provided within 14 days and can be used as evidence in a complaint of unfair dismissal.
Despite the erosion of union power, all employees are still protected by the system of industrial tribunals. If a case goes before a tribunal the onus will be on the company to prove that its reasons for dismissal were reasonable and that it acted fairly.
If it fails to do this, the company faces having to pay compensation awards of up to £11,000 and solicitors' or other representatives' fees, as well as the stigma of a negative judgemeni So employers will need to do more than just satisfy legal requirements, if they are to avoid an industrial tribunal. Under section 54 of the 1978 Employment Protection (Consolidation) Act there are four circumstances where an employer is legally justified in dismissing an employee.
Incapable
The first is if they are incapable of performing the duties outlined in the contract of employment. Gross misconduct such as a committing a criminal offence (in or outside work), defrauding the company, stealing from the company, using foul language or violently attacking someone forms the second circumstance. The third is genuine redundancy not the singling out of one person while others of similar status are unaffected. And the fourth covers any employee act not accounted for in the first three categories. Even there, the company has to prove that its reasons were "substantial", and that the employee's act had a negative effect on the company.
According to ACAS, there is no set procedure for dismissing an employee, but in its comprehensive booklet, Discipline at Work, ACAS discusses the matter as a whole and offers general guidance on dismissal.
Copies of the booklet are available by credit card on (0533) 463346.
An industrial tribunal will not look favourably upon the employer if it failed to give three warnings to the employee: one verbal; one written warning offering a stated time within which to improve; and a final written notice.
"The employee should be given fair warning," says an ACAS representative. "He should also have the opportunity to improve, the right to give his side of the story, and be informed that he will be dismissed if he does not improve."
In a recent case P&O Roadtanks' decision to sack an employee was supported by an industrial tribunal.
The employee was dismissed for making false subsistence claims but decided to present an unfair dismissal claim before an industrial tribunal. The United Road Transport Union argued on his behalf that P&O had been inconsistent in the way it had dealt with its disciplinary problems.
P&O Roadtanks managing director Steve Bradburn was pleased by the tribunal's decision, but, stresses that dismissal should be "the last resort, when you've exhausted all other disciplinary procedures". He stresses that cases of this sort are are few and far between, and that most employees come to work "to make an honest living".
But not all cases go the employer's way, and it is arguable whether they are few and far between.
David Higginbottom of the United Road Transport Union says: "We're always involved in actual dismissals, or situations that may lead to dismissals, and our success rate is very good."
A 1992 Government survey from the Statistical Service (the latest research information published) found that 41% of tribunal hearings rule in favour of the employee.
It also found that two thirds of cases were against small private sector companies employing 100 people or fewer—a factor particularly relevant to the haulage industry which includes many small firms. "A major factor in the transport industry is the size of the company," says Higginbottom. "There tends to be a lot of small companies and very few of them have formal grievance procedures More employees are likely to get fired in a fit of pique and, as the employees are often poorly informed about their rights, they don't take issue."
One development that Higginbottom points to is the latest change in the law which allows employees employed for less than two years to take a case to tribunal if it is linked to a health and safety issue.
Exhausted
"We've got one case coming up involving a large company," he says. "The driver took two nine-hour breaks and was asked by his employers to take another nine-hour break. He said he was exhausted and needed to take an 11-hour break in order to be fit for driving, but the company sacked him."
Higginbottom says that, because he had only been employed for 18 months, he would not normally have the right to a hearing, but "because it is a health and safety issue it doesn't require the two-year rule".
What is interesting is that it will be one of the first cases to try out the new law and could set a precedent of importance to the haulage industry which is dominated by safety issues such as this And, according to Higginbottom, the compensation awards in such cases can be large, depending on what is at stake for the employee.
"If the employee is near retirement age, he could theoretically claim for loss of earnings for the rest of his working life because he would be unlikely to find alternative employment," he says.
n by Giselle Jones