Employment law has improved relationships
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MYears of work in the field of Industrial Relations have persuaded me that the single most important factor in employment is communications.
In the unhappy event of an industrial dispute, communication with the employees is critical. Whether intentionally or otherwise it is not uncommon to find that union officers have misinterpreted messages from the company when putting them to employees.
I am no historian, but I suspect that the belief that one should not communicate with the workforce is inherited from our Victorian forebears. Times have changed and, if this article persuades at least one reader to improve his communications with his workforce, I shall be delighted.
Communication is, in some ways, a separate issue to the problems of employment. The employer requires the work for which the employee has been engaged to be done efficiently and in accordance with the company's nlles. What, then, about discipline?
I was recently told by a full-time chairman of an Industrial Tribunal that the case load had dropped significantly since the qualifying period for a claim to a tribunal was increased to two years. My own experience bears that out. Subject to the two special categories of dismissal, that is to say dismissal because of trade union activities or race, an employee can be dismissed for any reason provided that the employment, including any due notice, has not been for longer than two years.
In reality an employee who is unsatisfactory so far as a particular employer is concerned is likely to be "discovered" well within the two-year period and should be dismissed. In practice I find that there has been some sort of information lag. I have frequent calls from employers who need to be convinced that there has been a change in the law and that dismissal within the two-year period is now permitted.
On the other hand "two years" has a nasty habit of passing by unnoticed. While the number of claims to the Industrial Tribunals has dropped, the size of the awards has increased. An unfair dismissal may be, as no doubt was intended, a costly error.
Discipline should be treated seriously from the moment that employment starts. An employee who does something wrong should be disciplined in accordance with the company's rules. There should be no employer who does not have some knowledge of the current disciplinary requirements, but there are many who do not. Equally there are many who have grasped some myth of employment law and believe it to be the actuality. The ground rules are simple.
Any warning, whether oral or written, should be recorded in writing. The giving of an oral warning should at worst be entered in a diary, and at best recorded on a piece of paper and signed by the employee concerned. However it is done it should be a matter of record. A written warning should be, so far as is possible, in general rather than specific terms. There is nothing more frustrating for an employer than to warn a particularly undesirable employee for, say, failing to check the condition of a load, and then, when another offence is committed and dismissal seems possible, to be told that, as the warning was in relation to the load it is not relevant in relation to the second offence.
Never interview an employee on your own if it is likely that warning will be given; always give an employee the right to have a colleague present, and, unless the company is very small, the right to appeal the decision.
Although a guide has been established of the "three" letters, that is to say two written warnings and then a final warning, that is only a guide. An employee who does something for which he ought to be dismissed can be dismissed even if he has only had one, or no, written warnings. Equally you do not have to dismiss an employee who does something wrong after a "final" warning.
I am regularly phoned by employers who have an unsatisfactory employee who has just got over the two-year period and who tell me tales of the problems that the employee has caused since he arrived, but have no single record of any occasions on which a warning was given because they always intended to fire him but never got round to it.
At the end of all this, take time. Never allow yourself to act in haste. Never be pressured into acting without thought. Make sure that, in a large company, no one gets the bit between their teeth and fires someone without discussion. I assure you that, against the cost of a tribunal hearing the cost of sending an employee home while an investigation is carried out is as nothing. When in doubt, take advice.
Finally, a few words about tribunal hearings. First, there are, in real terms, no costs. Whether you win or lose it will cost you money. Whether or not you employ a solicitor you will have to bear the cost of your own attendance and time will be absorbed by the time spent in preparing the case. Unions and many employees are aware of this fact and in many cases an application to a tribunal is seen by an employee as a gamble at odds which are sufficiently attractive to make it worth while.
Rightly, or wrongly, it is my view that settlement of a tribunal case should always be one of the options taken into consideration. There is in almost every case a figure at which settlement will be cheaper than the cost of the fight and, if a claim to a tribunal is a gamble for an employee, so it is for the employer.
I believe that employment law has improved the relationship between both employer and employee and, perhaps more important, between employer and union. Hopefully, changes in the law will reflect the experience of both sides.
A final message? Communicate and take time. by Jonathan Lawton