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DISMISSAL

GROUNDS TO DISMISS

What do I need to know?  Dismissal is the termination of an employee’s employment – with or without notice. The law requires that a fair reason is given for the dismissal; that the disciplinary process leading to the dismissal conforms with standards of fairness and natural justice; and that the decision to dismiss is reasonable in all the circumstances.

What’s the difference between unfair and wrongful dismissal?  An employee may claim at an employment tribunal that the dismissal is “unfair” (against various statutory criteria and case law); or that the dismissal is “wrongful” (eg it has not been terminated in accordance with the terms of the contract).

What are the five fair reasons for dismissal? There are now five potentially fair reasons for dismissal:

  1. Relating to the employee’s capability or qualifications for the job. 
  2. Relating to the employee’s conduct
  3. Redundancy
  4. Statutory grounds ie: because a statutory duty or restriction prohibits the employment being continued (e.g. if a lorry driver lost his driving licence he would no longer be able to comply with the law which governs his job)
  5. Some other substantial reason SOSR; (imprisonment of the employee, for example, would mean that they were no longer able to under the work they are being paid to do)

In each case, the dismissal is only fair if the employer acted reasonably in dismissing the employee for that reason. This includes following an appropriate procedure before dismissing them.

An employee having reached retirement age (usually 65) is no longer a fair reason for dismissal.  Nor are debt problems grounds, alone, to dismiss – save for exceptional cases ie: A Director or in the Finance Sector. 

Whatis constructive dismissal? Effectively, constructive dismissal happens when the employee dismisses themselves because they feel that conditions or an employer’s attitude at work have become so bad that they have little choice but to resign. The dismissal is therefore unfair and can lead to a constructive unfair dismissal claim. The legal definition is the termination of employment by an employee in response to a fundamental breach of contract (a breach of trust at the heart of the contract) by the employer. Sometimes this will be of an express term of the contract of employment, such as the right to be paid a certain amount on a certain date. More commonly, it will be that the employer’s behaviour destroys or seriously undermines the relationship of trust and confidence that should exist between employer and employee by, say isolating them or failing to deal with a grievance.
To prove a constructive unfair dismissal, an employee must demonstrate that:

* the employer has breached the contract, and 
* this is a significant or fundamental breach of contract, and 
* they terminated their employment in response to that breach and did not delay resigning.

Example – the wrong way  If an employee is dismissed for gross misconduct because s/he used the internet for personal reasons they may be deemed to have been ‘unreasonably’ dismissed (ie: unfairly dismissal), IF the Company Policy did not make it explicitly clear that their internet use was being monitored. A company IT policy needs to state that no personal internet use is permitted during core working hours.

Example – the right way Have a clear and concise internet use policy which states your company’s position on staff using the internet and how you intend to monitor that use. If you don’t already have such a policy, be reasonable with your staff and their internet use until you do. Remember, you can’t discipline or dismiss people if you haven’t made it clear to them what they’re doing wrong.

DEALING WITH EMPLOYEE ABSENCE

Article Courtesy of Words4Business  www.words4business.com

Employee absences can be both costly and disruptive and may be one reason to dismiss under point 1 (Capability), the term being on ‘grounds of ‘capability due to ill health’.  It is advisable to have systems in place to measure and analyse these costs so that you can identify problem areas. Are there patterns of absence? Does a particular department have a below average record?

Unhappy, demoralised employees are more likely to take time off work. Workplace stress is still the most common cause of long-term sickness among non-manual workers. Creating a friendly working environment, where staff feel valued as part of a team and where flexible, ‘family friendly’ policies are in force is likely to pay dividends, keeping absenteeism to a minimum.

To manage absence effectively, make sure staff are well informed as to your sickness policy and procedures. Make sure these are seen to be followed and keep accurate records. These must be kept for at least three years after the appropriate financial year-end.

When hiring new staff, make sure you check their attendance record with the previous employer. If new staff are absent it is good practice to make sure you know if there are problems preventing them from settling in. How staff are treated in the first weeks of a new job is vital. Inadequate training can leave them feeling disillusioned.

It is sensible for employers to ensure that contracts of employment allow them the right to get an independent medical assessment in the event of an employee taking more than a few days off work. You may consider requiring all potential employees to undergo a medical examination with an occupational health adviser.

As a matter of company policy always carry out a ‘return to work’ interview. This may range from ‘hope you’re better, we missed your contribution’ to an identification of underlying problems that will affect your management strategy. It may also deter malingerers.

Long-term sickness must be handled sensitively, firmly and fairly. You must have an employee’s permission to apply for a medical report. It is vital to keep in touch so that the employee doesn’t feel isolated. Consider referring them to an occupational health specialist. This can identify ways of helping them return to work and give you information as to how long the absence is likely to last.

Disciplinary action for unacceptable absence must be distinguished from dismissal on health grounds. Employers need to be aware of the full range of conditions that count as a disability for the purposes of the Equality Act 2010. Where an employee is suffering from a condition covered by the Act, reasonable adjustments must be made to help them return to work.

Dealing with long-term absences, in particular, is a difficult area of the law. Each case must be decided on its own merits and proper procedures must be followed. Employers who have not done so for a while are advised to review stress management and long-term absence policies and procedures so that potential problems are identified early on and remedial action taken as soon as possible.

Call us for a FREE and confidential discussion if you are concerned.  Tel: 07734 701221.