How to Nip Unfair Dismissals in the Bud
Tue, December 20, 2011 at 13:22 
In the UK each year, there are approximately 50,000 unfair dismissal cases that are taken to the Employment Tribunals process. That’s a headline measure of how big an issue this is within the British economy. Unfair dismissals make up the largest single issue that are taken through this route.
Unfair dismissal has been the biggest issue in the Tribunals system for some years. Approximately half of unfair dismissal claims are settled before they go to tribunal, through some form of payment or conciliation type process. The prevailing view is that the claimant--that is the employee--has a pretty fair chance of winning; whether that’s winning in the tribunal or having the issue settled out of court. Over the years, more and more dismissed employees have chosen the option of applying to a tribunal because of their chance of success against their employer. So, what’s going on that creates this rise in the number of unfair dismissals and why can it be so?
Unfair dismissals come about as a result of an organisation taking the decision to get rid of one of its people and doing so in such a way that is deemed to be unfair and unreasonable, by the individual, in the eyes of the law. The reason for unfair dismissal is usually to do with one of the following issues. The first and most dominant issue is that the employer-employee relationship has gone wrong. For whatever reasons, the individual is seen as a “bad apple”. Maybe they always were, in which case the recruitment process or probationary period should have picked it up. Or maybe the individual is the same but the new boss saw them this way and the relationship went sour.
Organisations require real rigour about the way they bring people in; whether they’re bringing them in part-time or full-time, on a fixed or a permanent contract. It is easy to determine whether this candidate can do the job. It is much less easy to see if the individual is going to fit. The easiest way of avoiding trouble further down the road is to nip any potential issues in the bud early, when you begin to see signs of someone not working out.
Let’s assume that a person has been working for a while - in British law that’s two years. You cannot make an unfair dismissal claim against the employer unless you’ve been working there for two years. So let’s say that something has been going on for quite some time. One of the biggest issues for employers when they embark on a disciplinary process, for example, is that they are not engaging in their own processes themselves. This is a big no-no from the employment tribunal’s point of view because if they see that the employer hasn’t followed their own due process, that’s a sign that they’ve acted unfairly. The process hasn’t been adhered to by the line manager. HR departments tend to be good at following processes. Line mangers, however, in a fit of emotion, sometimes say something or do something that precipitates the process going wrong early. The main reason for this is a lack of training and, therefore, understanding by the leader/manager concerned.
Such a development can lead the employee to the conclusion that it’s better to seek medical assistance - for the lack of sleep or stress caused by the situation and before you know it, the individual is in a period of sick leave that goes on and creates real problems to untangle. This is why it’s such a problem for the organisation. It’s not the cost of lawyers or of attending the tribunal that is the most damaging. The real cost lies in how much time it takes to manage these situations together with the costs of lost productivity of the worker and their team/unit.
The cost of time in the 21st century means that every worker tends to be key to the organisation. And in terms of other issues that are not good for the company, you end up with a chequebook management type of culture. There is then a subsequent loss of reputation because it will become known pretty quickly that this is the way the organisation prefers to deal with difficult issues. When you look at the benefits and return on investment in good management practice versus what we just described, the discrepancy is huge. So what tips can we give for avoiding this situation?
- Firstly, step in early, as we said. Particularly when you’ve recruited somebody new, deal with them swiftly if it starts looking like they could be difficult to manage downstream. Deal with them during the probationary period and if necessary extend that period so that you are sure.
- Secondly, if after two years you are beginning to have issues, again step in early. Use mediation tactics to identify the issues and agenda and the gap between the two parties. Why are the two so unaligned? Talking about it early is so crucial.
- Utilise performance management processes. If you have somebody who is in a difficult space with their boss, use performance management processes more frequently. Regular conversations keep the issue live so it doesn’t fester. Make sure the local management keeps it live too. Don’t let it come off the management agenda within the HR department or in the individual team. If you allow it to fester, it costs a lot more time and effort and it gets so much more complex.
Life is simple; it’s just humans that complicate it. Work is simple and it’s just human beings that complicate it. Performance management processes are simple and it’s just in the last twenty years that humans have complicated those too. We need simple processes that allow people the chance to converse with the boss and look at things that are going well and not going so well.
There has been a rise in unfair dismissal cases in the last few years in the UK. They are not currently rising to the same degree as they have been recently, but we are around the 50, 000-a-year mark. That translates as 1000 unfair dismissals claims per week in this country and that is not a good statistic. It is not difficult to eradicate this issue from our agenda and save ourselves a huge amount of time in this business—remember, time is money. The issue is such a waste of productive capacity and yet so easy to sort out.
About the Author:
By Simon North, Founder of Position Ignition, one of the UK’s leading career consultancies and late career management companies. Simon has had a 30 year career in HR and works closely with individuals and organisations to help them manage their senior workers effectively.
