With all the recent press regarding ‘no fault dismissals’ and ‘Settlement Agreements’, it is no wonder employers are confused with regards to what they can and can’t do when it’s time to part ways with an employee.
Fundamentally, reasonableness and due process should remain at the heart of what we do, however, there comes a time when even the most patient of employers says enough is enough. When resolving any employer/employee dispute, it is important for employers to recognise that no action is without risk. Even the most carefully executed process will not prevent a motivated ex-employee from raising tribunal proceedings and potentially being successful.
However, we all know that the riskiest business of all are dismissals that come as a result of an ‘off the record’ conversation, often held on what an employer thinks is a ‘without prejudice’ basis. So when is the right time to have such a conversation and on what basis? Whilst the Government has shelved plans to allow so called, ‘no fault dismissals’, which were tabled as part of the Employment Law Review, this summer, it is expected that we will see the introduction of ‘Settlement Agreements’, an updated version of what we have all come to know as ‘Compromise Agreements’, through which an employer can gain protection from unfair dismissal claims. These ‘Settlement Agreements’, will come at the end of a process that will begin with a proposal to end the employment relationship which can be tabled by either the employer or indeed the employee.
Using standard templates and ACAS code of practice, employers will be guided end to end through the process. Whilst all this sounds favourable for the employer, it is important to note that this process will only offer protection in unfair dismissal claims. Claims that include other breaches such as discrimination, evidence of automatic unfair dismissal, e.g. Whistleblowing, or where there is evidence of ‘improper behaviour’, such as coercion will not be protected. It is also important to note that any conversations held prior to obtaining a signed ‘Settlement Agreement’, can still be admissible in Employment Tribunal proceedings, unless held on a ‘without prejudice’ basis.
The rules for such a conversation are that they should be only be held in ‘a genuine attempt to settle a dispute’ and both parties should be aware of exactly what that means. This suggests that employers should explain fully what ‘without prejudice’ means, prior to the commencement of such discussions, preferably in writing; and should remind the employee of the same at the start of any face to face or telephone discussions.
Whilst Solve. welcome the Governments plans to ease the ending of fractious employment relationships, it is clear that this particular process is not black and white. Therefore, even if you believe that you have a straightforward case of unfair dismissal, we would suggest that you review any proposals for ending the employment relationship with a specialist HR and Employment Law practitioner.
If you have any questions or would like some more advice please contact us on firstname.lastname@example.org