Recent research from the Legal Services Board has revealed that more than half of UK SMEs are choosing to handle their own legal issues.
Now of course under the current climate, wishing to forego retained solicitor fees can make financial sense, but it also means that businesses need to become more clued up when it comes to the law. Michael Salter, myBarrister employment law specialist explains.
Taking on new staff for example is a common area of concern for many companies. The fear of dismissal disputes in the event that things don’t work out can make hiring seem like a leap of faith, and from professional experience these fears aren’t unwarranted. Tribunals are costly, both in terms of their expense and by draining company resources during the long-drawn-out process. Often taking upwards of six months between the claim and hearing it is a stressful distraction for managers.
The best advice to avoid employment disputes is to ensure your business has complied with employee statutory rights and the correct dismissal procedure. That way you can minimize the risk of employees successfully contesting their dismissal.
Resources like the Citizens Advice Bureau are a great place to check that you have covered the basics of employee statutory rights. Amongst others these include the rights to a written statement of terms of employment within two months of starting work, itemised pay slips, the national minimum wage, paid holiday, time off for trade union activities, paid time off for ante natal care, paid maternity and paternity leave, and the right to work in an harassment and discrimination free environment.
Nevertheless despite creating a fair environment for your staff – and barristers can help you draft compliant contracts – when it comes to the dismissal process businesses need to be particularly diligent. A few best practice guidelines to follow for each common dismissal category, which barristers like myself advise to clients when guiding a case or providing independent advice to avoid tribunal, are as follows:
• Before an internal disciplinary hearing, be sure to undertake a thorough investigation, taking into account different versions of events and approaching the exercise with an open mind.
• Share information gathered with the employee and ideally give them at least a week’s notice to prepare for the disciplinary hearing.
• Keep written minutes of each meeting and have the employee sign-off on each as a record of what was said. A paper trail is especially valuable in the event of a misconduct hearing being contested.
• As a general guideline as a company you also need to decide on sanctions and keep consistency. Generally, you shouldn’t fire someone for an offence that another employee only received a final warning for unless there are clear differences between the two cases. Avoiding allegations of personal bias is key.
• Key to issues around capability – where the employee is simply not up to the job – is the need to give the employee a chance to improve. You need to clearly set out where they are falling short – are they too slow, are they lacking key skills – and decide on fair targets to be met following a period of review.
• Remember to also consult the employee’s contract and job description to make sure your demands are in line with their actual job requirements.
• If the period of ill health is relatively short you are more likely to be expected to keep them on, and then justify your case if unable to keep them on the payroll beyond this timeframe.
• In all cases where someone’s health is affecting their performance of their job, you need to refer to their doctor and an occupational health expert before pursuing dismissal, always ensuring any decision you make has taken into account up-to-date medical advice and prognosis.
In redundancy claims you often need to demonstrate that the employee’s job will no longer exist or that you no longer need so many people to carry out the function they undertake. In redundancy situations the employee may expect to be given reasonable time off to attend interviews to find a new job, but to reduce the risk of a dispute you need to also be aware that:
• Fair selection criteria must be applied when selecting the individual for redundancy, and the employee must be consulted about these reasons for their selection. Again avoiding subjective assessments is important, the criteria should be objective
• In the event of a genuine redundancy, employees must also be considered for any suitable alternative employment if possible. This may involve a trial period without losing their right to redundancy pay.
However despite the best efforts of those involved employment tribunals are a business reality, and when faced with a claim it is best to take them seriously no matter how insubstantial you believe the claim may be. Similarly a failure to respond to the claim within the 28-day timeframe will often result in a default judgment in the employee’s favour.
Ultimately the law is there to protect both employee and employer so when it comes to preparing your case this is where your earlier due diligence will reap dividends as a record of your actions. And establishing that correct procedure and clear communication took place – with a paper trail of evidence – avoids ‘your word against theirs’ arguments. Changes to the employment tribunal system scheduled for this summer is also good news for SMEs given that the introduction of fees for claimants submitting claims is expected to reduce the number of frivolous claims pursued.
In spite of these changes to the system though, the stakes of tribunals and legal disputes are always higher for SMEs keen to keep their costs down, but by putting clear policies in place and keeping records it is possible to protect your business and feel prepared in the event of a disagreement.
From consulting with an expert direct access barrister to provide a steer on the merits of your case and course of action, to pursuing mediation and arbitration as an alternative to tribunal, there are affordable resources available to help reduce the cost and stress of dismissals without expensive solicitor retainers. In fact many companies are unaware that it may be cost effective to instruct a barrister directly, where they have the capacity to do some of the basic preparation for a case themselves. DIY law may be on the rise but you needn’t be completely alone.