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Employment myths 2

22.01.2015

I have received a letter from an employee, but it is not labelled ‘grievance’, so I do not need to treat it as such.

A grievance can be any concern, problem or complaint that an employee raises.

A failure to treat any letter in these terms as a grievance could result in the employee being allowed an uplift on any eventual Tribunal award.  In extreme cases, failing to deal with a grievance can allow the employee to resign and claim constructive dismissal.

If an employee fails to raise the grievance, they could still bring a tribunal claim about the matter but may recover less compensation.

If an employee has less than 2 years’ service, I can dismiss them for any reason and the employee will not be able to bring a claim for unfair dismissal.

No, if an employee wishes to bring a ‘normal’ unfair dismissal claim, for say a conduct or a redundancy dismissal, then they need to have completed at least 2 years’ service.

However, some claims do not have a minimum period of employment, this includes dismissals linked to discrimination or as a result of the employee raising a health and safety concern.  Discrimination claims can even be brought by potential employees if they faced discrimination during the recruitment process.

Following the increase in the minimum period of employment to bring a claim for unfair dismissal to two years, an employee’s only recourse may be to claim that the dismissal was for one of these reasons.  So, even where an employee has been employed for less than two years, it is safest to follow a basic procedure.  Always have a paper trail to support the reason for dismissal (e.g. misconduct) in the event that an ex-employee alleges that the actual reason was for a discriminatory reason (e.g. she was pregnant).

If an employee is guilty of gross misconduct, I can sack them on the spot without going through a disciplinary procedure.

This is risky.  Even if you catch an employee red-handed, for example taking money out of the till, you would be well advised to investigate and follow a disciplinary procedure to ascertain what happened and whether there are reasonable grounds to dismiss.  For example, did another manager authorise money to be taken for some reason, or is there a mitigating factor?

Unless you investigate to get to the bottom of what happened, it may be difficult to show that you had reasonable grounds to dismiss if the decision is challenged.  Following a procedure should also help demonstrate that misconduct was the reason for dismissal and not some other reason such as the employee being pregnant or disabled.

Failing to follow a disciplinary procedure can result in an uplift of up to 25% in an unfair dismissal claim.

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