Jaimie Whiteley, Solicitor Advocate gives a run down on dismissing staff before they reach the statutory protection for unfair dismissal timescale of 2 years.
Although you can dismiss a member of staff without going through the correct disciplinary or dismissal procedures we would strongly suggest you exercise caution and go through these procedures. Even though the employee won’t have the statutory protection for the unfair dismissal they could still bring a claim for unfair dismissal. There are claims employees can bring even without the 2 years service such as
- Pregnancy
- Raising H&S concerns
- Discrimination
- Gender
- Breach of contract
In conclusion, although you don’t have to follow the correct procedures before the 2 years service, we would suggest you approach this cautiously and use best practice by following the procedures to protect your business from an employment tribunal claim.
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Why should I use a solicitor for an employment tribunal rather than doing it for myself?
Are you facing an employment tribunal? Are you considering representing yourself without using a solicitor? Jaimie Whiteley explains why it’s is best to use a solicitor in the event of an employment tribunal.
It is important to consult a solicitor because they will be able to assess your claim and defence and highlight the strengths and weaknesses for the claim and defence and they will be able to help you decide whether its worth pursuing the claim, pursuing the defence or whether it would be better to settle the claim early on.
A solicitor can also identify any clear defences or claims early on which will save you a lot of time and money.
Then, if you do proceed with a claim they can help you prepare the complex and technical documents required during the tribunal and ensure your case is set out clearly and concisely which will help the judge understand your claim at tribunal and should make the process much quicker and straight forward.
A solicitor can then also guide you through the process which is complex, time sensitive and often very stressful. This will take the pressure away from you. You will know your claim is in safe hands and is being dealt with in the proper way.
A Day in the Life of Jaimie Whiteley, Employment and HR Lawyer
7.50-8.00 – I like to get a head start on my work for the day whilst it’s quiet. I grab a coffee and log on to my computer.
8.00-8.30 – The first task of the day is to review and sort my emails. Doing this first thing in the morning ensures that I am aware of anything urgent which has come in the evening previously and can plan my day accordingly.
8.30-10.00 – I have a preliminary hearing this morning which is due to start at 10am. I review the file which I have prepared for the hearing which contains all the documents I will need. A preliminary hearing is a hearing which is designed to provide directions for things such as exchanging evidence and witness statements, it is also an opportunity for us to ask for claims to be struck out if we feel they have no reasonable prospects of success. This claim isn’t one of those and as such, I plan what directions I am going to ask the Judge for and anything else I want to say.
10.00 – 11.00 – The Preliminary hearing is, as expected, very straight forward. This is not always the case and you do need to be prepared because you never quite know what the Claimant is going to say or ask the Judge for, especially if they are a Litigant in Person which is becoming more and more common.
11.00-11.30 – I call my client for a de-brief to explain what has been decided at the Preliminary hearing. I then type up my file note of the hearing so that I have a record of what was said. I can use this in the next few weeks to check the new deadlines in the case because in many cases the Orders do not get sent to us by the Tribunal prior to the deadlines coming up.
11.30 – 13.00 – This morning, whilst checking my emails I noticed that an email I had been waiting for had come in with a contract to review. I review the contract and prepare a document setting out the clauses I feel need to be updated, what amendments I suggest to those clauses and any suggestions of relevant or new clauses which I feel would benefit the contract. It’s important that contracts are reviewed regularly in light of changes in the law or new case law to ensure they protect both employers and employees. I send the document and contract across to my supervisor to check and approve prior to sending the finalised document out to my client.
13.00 – 13.30 – I like to go out for a walk on my lunchbreak, the weather is lovely today and so I head out along the seafront for half an hour.
13.30 – 14.30 – When I get back to my desk, I draft a couple of letters regarding the ongoing compulsory vaccination issues in England to support our internal HR team. This is an area that is constantly changing, as the law develops and it is important that we are ready and can provide up to date documents and advice for clients to work with.
14.30 – 15.30 I notice that I have had a couple of emails from reception with new client enquiries. I call each new enquiry and discuss the issues they are facing. I provide one client with some initial advice on a disciplinary procedure and arrange a meeting with another for later in the week due to the matter being very complex.
15.30 – 16.30 – I have a meeting with one of my clients to take instructions for issuing proceedings. During the meeting we review everything that has happened so far. I remind the client of the risks of issuing proceedings and the work that will need to be done moving forward. I explain the current time scales involved with claims in the Employment Tribunal. I also double check all the basic details which I will require in order to submit the claim.
16.30 – 19.00 – I have a Tribunal starting next week and need to prepare my closing submissions. this is a task which takes a significant amount of time because closing submissions are the last thing the Tribunal will hear before making their decision on the case. I have already reviewed the hearing bundle from start to finish, having prepared this bundle quite some months ago it is important to make sure I have remembered all the details, and begin to draft the submissions. I finish my first draft at around 7pm, just in time for dinner!
Working as an Employment and HR lawyer is hugely varied, the work is often complex and challenging. There are so many different areas that I get to work on, one day I can be in Court and the next day I can be advising on contracts and employee handbooks. It’s great to be working in an area which can have such a big impact on people’s lives and businesses.
Jaimie is a keen sailor, read more about her Law Society racing here.
Dealing With Remote Working Requests – It would probably be no exaggeration to say there has been a workplace revolution in the UK, and in many other countries around the world. Over 18 months ago working from home was still seen as a rarity looked upon with envy and cited as the ‘dream’ for many employees.
Fast forward through a global pandemic and working from home has become in many office based industries part of the norm. From cat filters in court to questionable backgrounds, children making cameo appearances and the multitude of takes on the ‘bookcase’ that appears in so many video calls, remote working has very much become part of life.
It may have worked for your organisation, it may not. You might be one of those managers who is desperate to get your team back together feeling the loss of the personal connections and your staff suffering with Zoom fatigue. Or, it may have revolutionised the way you all connect, communicate and you have found it has brought the best out of your team.
Either way, the initial drip feed of remote working requests from 18 months ago has in some sectors become a torrent. Commuting, childcare costs, lack of social and leisure time have become the new pet hates of those who worked from home during the peak of the pandemic and have been asked to return to the office.
So how do you deal with remote working requests? Do you have to agree to them just because it worked for a period during the pandemic? Is the right automatic?
The answer is no.
You don’t have to agree them simply because it has been done for a period and the right is not automatic. You do however have to deal with any requests fairly and in line with any policy that you may have in place. If you do not have a policy in place we would suggest you follow ACAS guidance and consider the use of their template in the interim.
In the absence of a specific home working policy, it should be dealt with as a flexible working request (though bear in mind an agreement to home working doesn’t mean that flexible hours have been agreed unless this is part of the deal, an employees core hours would remain the same).
Any employee with over 26 weeks continuous employment can make a statutory request for flexible working.
An employer should follow a process, where the request is considered, a meeting is held with the employee to discuss the request and a decision is provided with reasons. An employee should also be given the right to appeal.
In terms of making that decision, an employer can only reject a request on the following grounds:
– Burden of additional costs
– Detrimental effect on ability to meet customer demand
– Inability to reorganise work among existing staff
– Inability to recruit additional staff
– Detrimental impact on quality or performance
– Insufficient work during the periods your employee wants to work
– Planned structural change
If an employee has worked from home for a long period during the pandemic, it won’t be impossible to say no but an employer would need to be able to provide clear evidence as to why it is no longer possible given it may have worked well for a significant period.
Jaimie Whiteley