Topics to be answered in this article
Warnings and dismissals
What makes a warning a valid warning that you can subsequently rely on to dismiss?
Remember that a warning is a sanction and should be issued systematically and carefully. Make sure your warning is placed within a disciplinary hearing outcome letter. Its status should be crystal clear; is this a written warning or a final written warning? Its duration should be clearly stated and its expiry date should be identified. You should specify the findings that you have made in relation to conduct and the improvements that you expect to be made and the timescale for improvement. This letter should set out the consequences of further misconduct. This means that you are alerting the employee to a risk of dismissal. You should also specify whether these consequences will apply to further misconduct of the same type or to further misconduct of any type. Finally, this any written warning is a sanction and the employee must be given a right to appeal that decision.
The Employment Appeal Tribunal has made it clear that these rules apply not only to warnings issued in respect of misconduct and but also those issued in relation to capability. The courts will only interfere with a dismissal following warning if the warning is ‘manifestly excessive’. What does that phrase actually mean? It means that there was “something about its imposition that once pointed out shows that it plainly ought not to have been imposed”. So, if your warning is to be a sound platform for dismissal and within the range of reasonable responses, please ensure that it is a fair and reasonable sanction and that you followed the procedural steps!
When is an appeal not appealing?
Assuming you have a potentially fair reason for dismissal, the determination about whether the dismissal itself was fair or unfair depends on whether an employer behaves reasonably. Section 98(4) of the Employment Rights Act 1996 says this, whether the dismissal is fair or unfair depends on whether in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”…Habitually, this includes offering an employee a right to appeal the decision to dismiss.
However, in circumstances where the employer has irretrievably lost trust and confidence in the employee and where it is possible to state that an internal appeal would be futile and serve no purpose, an employer may be acting reasonably in not providing a right of appeal. A recent appeal case demonstrates the point. In that case the employee, a former CEO of the company and inventor, was frustrated by his change of circumstances and perceived lack of control. He made life extremely difficult for the new SMT. He was perpetually rude and insulting. The company had made a huge investment in his invention. The company was small. Ultimately, the Board lost confidence in the employee’s ability to change his attitude and behaviour. He was dismissed without a right of appeal on the basis of a relationship breakdown. The Tribunal observed that the lack of an appeal was a serious procedural omission in any unfair dismissal case. However, an appeal in this instance would have been a ‘meaningless charade simply for the sake of it. It is not part of a fair procedure to be conducted for the sake if it if the procedure is truly pointless’. There is no statutory right to an appeal. However, it remains best practice and an established part of a procedure. Any reasonable employer should offer an appeal. It is only the rarest case when an appeal can be said to be truly futile.
HMRC publishes the list of excuses for paying the National Minimum Wage
Did you know that to the financial year end 2021, HMRC helped over 155,000 workers recover more than £16m owed to them and issued over £14m in financial penalties to companies. Here are some genuine examples cited by employers as a sensible reason not to pay NMWA rates; ‘he does not deserve the National Minimum Wage because she only makes the teas and sweeps the floors’, ‘my employee is still learning so they are not entitled to the National Minimum Wage’, ‘my workers are often just on standby when there are no customers in the shop; I only pay them for when they are actually serving someone’. Here is the link to check your hourly paid staff rates National Minimum Wage and Living Wage calculator for workers – GOV.UK (www.gov.uk)
