There are four main reasons why a company may need to recruit someone:
As a recruiter, it is often the case that on taking a brief, it is found that if the company is recruiting in case 4, that the previous incumbent is either still in place and refusing to go, or you meet their lawyers in the entrance hall.
Why is this? Often because companies are unaware of the law, or even common decency when dealing with under performing employees. So, what are the grounds on which someone can be sacked?
Gross misconduct or repeated minor misconducts, or an employee failing to effectively carry out their job over a period of time are legitimate reasons for dismissal.
Minor Misconduct
A minor misconduct is where an employee breaks rules or performs poorly, but where the consequences for the business are limited. This would include:
Where a company provides access to but specifically does not allow personal use, then using a company vehicle, telephones or internet facilities for personal use are considered issues of minor misconduct. However, be aware of changing social climates and more prevalent internet use among the young, and that uses in case of emergency are not grounds for minor misconduct.
Sickness is not a minor misconduct, and not considered adequate grounds for dismissal. A company would be expected to have a care procedure for sickness, and undertake a full review process considering other rolls first. It is within the employers rights to request an independent medical examination in cases of persistent sickness, and if found that the illness is permanent and that reassignment is not possible within the restrictions advised in the report, normally the employee is retired.
A minor misconduct is not normally adequate grounds for dismissal, but if the behaviour is repeated, even after warnings, then it becomes a gross misconduct issue.
Gross Misconduct
Gross misconduct is where an employee breaks the rules, and the consequences for the business are damaging. This would include:
By law, all employees must be given initial job training and awareness, and a period of time to perform to the stated standards. Hence, minor negligence caused by a lack of knowledge or experience should be addressed with training or guidance in the correct area, and is not grounds for Gross Misconduct.
Alcohol and drug abuse
In certain jobs, the use of alcohol and drugs are banned both during performance of the job, as well as occasionally a period before starting work. Most of these cases are where the use of such substances would create a high chance of mass fatalities, and hence are cases of Gross Misconduct.
However, more normally employers are faced with facing the consequences of dealing with persistence use, or loss of a license which means the employee can not undertake their duties.
If an employee is banned as a driver for a period, then it is either a case of minor or gross misconduct. Short bans for periods of up to six months for staff whose work involves driving but is not the main focus of their work, should be addressed initially as a case of minor misconduct and a review for temporary reassignment during the period of the ban. Employees whose main focus of work is driving, a ban of over three months could be considered a case of Gross misconduct, and after a review of reassignment, can be dismissed for gross misconduct.
A loss of a licence should not be used to remove employees for any reason other than their job ability during the ban. Be careful of dismissing an employee that could fulfil other functions while banned, it could lead to an unfair dismissal claim.
However, in a majority of cases of drug and alcohol abuse, particularly where in all others areas the employee is performing well, an agreed reassignment and referral to a rehabilitation or specialist treatment are most likely to help the employee manage their problem and return to work. This will in most cases work out cheaper than hiring and training a new employee, and often has the most positive effect on overall employee morale.
Redundancy
I will briefly cover redundancy, although recruiting post a redundancy would as you will see would be illegal, and I would refuse to take the recruitment brief.
There are many reasons why you may need to make someone redundant, a need to save money, overcapacity, branch/office/factory closure, or a lack of need for the job. In each case, there is a requirement to lose a particular number of staff.
Redundancy means that the job no longer exists. If a direct replacement is hired for the employee then it is NOT a reasonable case of redundancy. However, if an employee is made redundant as part of a need to reduce the workforce, and an existing employee moves into that job, that is still redundancy; as long as no vacancy or opening exists for the redundant job.
As redundancy causes a lot of damage to employee moral, always offer voluntary redundancy or early retirement options first. Yes, often this means that older, more experienced and hence more expensive employees will be the first to take the option, but the financial cost versus the effects on the remaining employees will be far, far less than compulsory redundancy. If offering voluntary redundancy, then it should be open to all employees - again, the morale cost versus the financial cost of losing some stars will be far less.
Legality
Before making any decisions on dismissal, it is of vital importance to make sure that your grounds for dismissal are legal. There are many situations that are covered in the law as being illegal grounds for dismissal. Such as:
If an employee is dismissed on any of these grounds, they have a right to claim for unfair dismissal.
For example: It is not wrong to dismiss a disabled person as long as the grounds for dismissal are unrelated to the disability. To dismiss a disabled person for serious negligence is reasonable, but to dismiss a disabled person for slow productivity (caused by their disability) is not allowed, no matter when the disability became evident / occurred. The situation is more complex if a disability occurs that makes the employee unable to carry out their existing job at all. In this case, you should look to provide alternative work.
A suggested procedure
When you first become dissatisfied with the performance of an employee, then initially bring this up with them in a regular 1to1 meeting. Find out if there are other reasons for their under performance, adding appropriate notes in the 1to1 minutes - remember, it is always cheaper to retain an employee than dismiss them.
If the issue of under performance continues, then I recommend that you consult a legal professional, specialising in HR law. The law society can provide you with a list of local legal firms which provide such a service. After this point, always follow their instructions.
The normal procedure from this point would be to now advise the employee so in writing. (Step one of the standard procedure.) Meet with the employee to discuss the problem and to explore constructively how things might be improved. (Step two of the standard procedure.) You should explore whether the matter can be resolved informally, for example, through training for the employee or extra supervision of their work. Inform the employee of how you expect them to improve, over what time period and when their progress will be reviewed.
If an informal solution is not possibly, take formal action, which should follow these stages: first written warning, final written warning. Inform your employee that they have the right to appeal against your decision. (Step three of the standard procedure.) Written warnings must set out the nature of the problem, the improvement or change you require and the consequences for the employee of failing to comply. At each stage, you should meet again with the employee to give them a chance to present their case. A written warning should be disregarded after a specified period without further action (for example, six months for a final warning). If the employee requests an appeal, arrange a meeting to hear the appeal. Tell the employee your decision. (Step four of the standard procedure.) You may need to repeat the procedure outlined in this paragraph as necessary.
If the problem persists, you may now decide to dismiss the employee or possibly offer them an alternative job. Make sure you give the correct notice. You must again follow the standard four-step procedure, so give your reasons for dismissal/transfer/demotion in writing, meet with the employee and give them the opportunity to appeal.
Please note - this is an article for guidance only within the UK, and should you actually require to dismiss someone, please always consult a suitable HR law qualified solicitor. The UK Law Society can provide you with a list of locally qualified law practices.
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