Dismissal of employees
Page 46
If you've noticed an error in this article please click here to report it so we can fix it.
EMPLOYMENT PROTECTION, 3
THE EMPLOYMENT PROTECTION (CONSOLIDATION) ACT 1978 by Les Oldridge, Tech Eng (CEI), MIMI, AMIRTE
ONE of the most troublesome pieces of legislation affecting fleet operators which has been introduced in recent times is that relating to the dismissal of employees.
Every week CM reports cases where drivers have complained to industrial tribunals that they have been unfairly dismissed, and often they are awarded considerable compensation. Yet if the proper procedure is followed, irksome though it may be, there should be few cases where the employer is penalised in this way.
An executive of one large bus company states that they now have a 97 per cent success rate, ie 97 per cent of cases heard before industrial tribunals are now decided in the company's favour. This is only because they have, in consultation with their solicitor, drawn up a dismissals procedure which is strictly adhered to. As a result, far fewer employees now complain to industrial tribunals and a lot of time and money is saved.
The Employment Protection (Consolidation) Act 1978 is the relevant legislation. Section 54 of this Act states that every employee, with certain minor exceptions unlikely to affect those employed in road transport, has the right not to be unfairly dismissed.
Section 55 sets out exactly what a dismissal is. There are three basic definitions: (i) where an employee's contract is terminated by the employer, with or without notice; (ii) where a fixed-term contract has expired and is not renewed; or (iii) where the employee terminates the contract, with or without notice, because his employer's conduct has forced him to do so. Section 57 sets out the reasons for which an employee may be fairly dismissed and places the onus on the employer to show, if necessary, that the dismissal was fair. In other words, in any dispute the dismissed employee has not got to prove he was unfairly dismissed but the employer will have to show that the dismissal was fair. Employees do not get the protection against unfair dismissal until they have had 26 weeks" continuous employment with a firm.
The following are the reasons for which an employee may be fairly dismissed: (1) Where an employee is unable to do the work for which he was employed because of his lack of capability or qualifications.
"Capabilityin this connection is assessed by reference to skill, aptitude, health or other physical or mental quality. "'Qualifications" means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held.
Unless there has been a serious deterioration in a man's capabilities, it is difficult to see how he could be dismissed under this section. As a dismissal will not come into dispute under this part of the Act unless a man has been with a company for at least six months, he could quite justifiably say, "Why did you not discover my incompetency at an earlier date?"
The lesson to be learnt here is to treat the first six months of a man's employment as a trial period and then if he is not up to the required standard, to dismiss him early before he gets the protection of the Act. The Act makes particular reference to health when defining capability, so it would seem that a worker who is no longer capable of doing his job because of ill-health could be dismissed, although, of course, it would be kinder to find him another job where the work was lighter and with which he could cope, if this was possible.
It is hard to visualise circumstances where a man could be dismissed for lack of qualifications because, surely, his qualifications would be known when he was engaged.
(2) The conduct of the employee.
Although the Act refers to -conduct", "misconduct'' would have been a better word, for this is the actual reason for which an employee can be dismissed. It is this section which has caused most trouble, probably because this is the reason for which most employees "get the sack" and because what the employer considers "misconduct" is not viewed in the same light by the employee. The dismissal should be in accordance with the Advisory, Conciliation and Arbitration Service booklet, Disciplinary Practice and Procedure in Employment, HMSO, price 15p.
Although this Code is not itself law, its provisions can be taken into account in any inquiry by an industrial tribunal. If disciplinary action is taken in accordance with the Code of Practice, then there is little chance of a worker being able to claim he was unfairly dismissed.
The Code advises employers to draw up a set of disciplinary rules and advises how this should be done. These rules should be readily available to employees and every effort should be made to ensure that they are understood. The Code sets out the following procedure where disciplinary actiol necessary:
6(a) In the case of m offences the individual sh be given a formal oral war or if the issue is more seri there should be a written fling setting out the nature o offence and the likely co quence of further offenceE either case the individual sft be advised that the wart constitutes the first formal a of the procedure.
(b) Further misconduct m warrant a final written wan which should contain a St ment that any recurrence wc lead to suspension or dismi or some other penalty, as case may be.
(c) The final step might be d plinary transfer or disciplir suspension without pay I only if these are allowed to an express or implied condi of the contract of employm or dismissal, according to nature of the miscondt Special consideration shoulc given before imposing di plinary suspension without and it should not normally bE a prolonged period., These steps in the di plinary procedure must properly recorded so t evidence can be producec any subsequent inquiry prove that everything poss was done to give the miscre an opportunity to improve conduct before he was ever ally dismissed.
Quite obviously, when v serious misconduct occ which warrants immediate missal, then this procedure c not be followed, but care sho be exercised to ensure that reason for dismissal can proved at any future inquiry. example, if theft is alleged, 0it must be possible to prove t the dismissed man was 1 thief; mere suspicion is not ficient.
More on this subject in next article.