To help companies plot a course through the potential minefield, law firm Carey Olsen recently addressed a seminar attended by members of the Jersey branch of the Chartered Institute of Personnel and Development.
nder the new law, the two key tests in determining if someone has been fairly or unfairly dismissed will be a) the reason for the dismissal and b) whether the employer acted reasonably or unreasonably.
otentially fair reasons for dismissal include a lack of capability or qualifications, poor conduct, redundancy and statutory prohibition such as a driver losing his licence, but an employer will have to follow a clear procedure to demonstrate reasonableness should the case ever go a tribunal, which the new law creates.
hen it comes to misconduct an employer will have to investigate a complaint fully and fairly before taking any action.
This will usually have to take the form of a preliminary investigation, followed by a disciplinary hearing in front of someone not involved in the investigation.
fter a period of ‘thinking time’ the hearing should reconvene and convey its decision in writing.
In capability cases the employer will normally be acting reasonably if he can prove that he gave the employee fair warning and an opportunity to mend his ways.
When it comes to poor performance, a focused enquiry will need to look at the problem from the employee’s angle and every effort should be made to set out a timescale for improvement.
If a warning is required, then the employee will need to be told that his job is at risk but he will also need to know what support is available.
n sickness cases the employer needs to take sensible steps to consult the employee and inform themselves of their true medical position.
The parties should have a full and frank discussion of the issues and the employer should ask for medical evidence.
If an employee is uncooperative, then an employer should tread cautiously – firms have lost unfair dismissal cases because they pressed a member of staff to hand over medical details.
mployers need to carefully balance business needs with medical evidence and take factors such as the length of absence and its impact, if there is any contractual sick pay and whether the employee has permanent health insurance into account.
Alternative employment should be offered if available and prior warning should be given if dismissal is a possibility.
he issue of redundancy will be the topic of another seminar early next year.
Contact CIPD representative Margaret Ellis on 886688 for more information.
1416September2003
