Employment rights have brought about a better work regime within which managers and the managed work as teams rather than warring tribes. Nevertheless, we can still dismiss people provided we have sound reasons and carry out the process correctly. The procedures to be followed may initially appear complex, yet, once understood, really are not difficult. Even so problems do arise — but so do opportunities says Bob Patchett.
The notice either party must give may be of any length provided it is no less than the statutory minimum, but what happens if no contract can be found and nobody can remember what it should be? If the person is a junior member of the workforce, then he or she probably is entitled to the statutory minimum of one week of notice for every completed year of service to a maximum of 12 weeks. However, more senior staff are likely to have a longer entitlement but, if no evidence is found for an individual, then you should assume that it is the same as that for people in similar jobs or of similar status in the organisation. This is what a court would do should the matter be taken to law and, if there were nobody in similar work — a specialist, say — then the judge would look to what appeared typical in the locality or in the appropriate professional sector and decide accordingly.
If you decide to dismiss an employee, you may prefer that they do not continue to work their notice period because, for example, there is no work for them, you feel they may be disruptive, or suspect they may take some of your secrets to a business competitor. In this case you have two options. First send them on their way with a payment in lieu of wages for their notice period. Usually employees are delighted to be given this opportunity — freedom and a sum of money. However, unless the contract of employment gives you the right to dismiss with pay in lieu of notice, you need to ensure agreement, otherwise you would be in breach of contract. The second option is to put the employee on “garden leave”, that is they remain on your payroll for the notice period but do not come in to work. Again, this is likely to be accepted by the employee, but you could be judged to be in breach of contract if the garden leave period were to last for more than a few weeks and the employee claimed that, being unable to work, he or she was losing skill or was becoming forgotten in the sales arena. Should the employee object, therefore, bring him or her back into work.
Employers really can get too uptight about security. If you engage someone to do highly confidential work that must not be revealed to competitors even after leaving you, then have a solicitor insert a restrictive covenant into the contract of employment. This will cost money, so ask yourself, whether it is really worth the cost and effort. Otherwise, when someone leaves, ask yourself honestly if they could do you actual harm if they go to a competitor, and the answer most likely would be “hardly any”. But if security really has become an issue, sit down with the employee and explain that, during the notice period, so that there can be no suspicion of leaks, he or she may not enter certain areas of the premises or deal with specified issues.
If the employee asks to leave before the end of the notice period, consider any difficulties that might present. If you need the person to complete a particular piece of work, why not agree that he or she may leave as soon as it is completed satisfactorily? This should get the job done well and save you a bit of notice pay. If employees are being dismissed on grounds of redundancy and have worked for you for two years or more, then they are entitled to ask for reasonable amounts of time off work to look for other employment or for training opportunities. You should grant this and pay for the absence.
Should an employee resign, do not treat this as treachery. By all means have a friendly chat to find out why the person is leaving and, if appropriate, see if you can persuade them to stay, but recognise that you cannot forever give everyone exactly what they want — career progression, wider experience, higher salary. Think carefully before deciding to see them off before the end of their due notice and, if they are good workers, treat them well because you may want them back in the future. You are entitled to have them work normally throughout the notice period, so, if they slacken off or misbehave, discipline them in the normal way. If they refuse to co-operate, you have the option of summary dismissal. Again, and if truly necessary, restrict their access to sensitive information. Also, be mindful that the employee is probably going to what he or she considers a better job, and no doubt the new employer wants the person to start as soon as possible. These two pressures therefore suggest that, the longer the notice period the employee is required to serve, the greater is the likelihood that he or she will not serve it. Should that happen, the employee would be in breach of contract but, unfortunately, although you would win your case in court, the damages awarded to you would be minimal, making the exercise pointless. If therefore the employee is in the middle of a project or doing other valuable work, have a discussion and suggest that, when certain targets are met, you are prepared to release him or her. You would of course be entitled to pay only to the point of leaving, but you may choose to pay for part or the whole of the remaining notice period as a gesture of goodwill.
Unless employment is ended as a result of contract frustration, for example because the premises have burnt down, you need to have a fair reason for dismissal and must not dismiss wrongfully. The latter requirement is for you to give and pay for due notice, therefore, should you not do that, the aggrieved employee would win a claim of breach of contract. The judge would consider not the length of due notice but rather how long the employee had been out of work, assess the net pay and value of fringe benefits lost during that period, and make that award against you. Should the employee still be out of work, the judge would consider, in view of the person’s age, skill, and the state of the labour market, how long the unemployment period is likely to last, and calculate accordingly.
And finally, if an employee just stops coming to work, don’t write them off. Make enquiries, write asking for an explanation and if that fails, write to invite the person to a disciplinary interview. If the person fails to attend, make sure that he or she is represented by a colleague at the meeting and, unless good reasons are presented for acting otherwise, dismiss.
Last reviewed 28 June 2017