A leaked UK Government report – commissioned by Prime Minister David Cameron – argued that lazy and unproductive workers should lose their right to make unfair dismissal claims.
The Government was quick to say that changes to unfair dismissal rules were unlikely following the leaking of the report by venture capitalist Adrian Beecroft, who argued that removing the protection would encourage growth by allowing companies to employ more productive workers.
Today a leading Scottish employment lawyer said that existing rules already allowed employers to terminate the employment of unproductive employees and that this would get easier when the Government’s proposed changes to the Employment Tribunal system took effect.
Hannah Roche, of Lindsays, said: “It is possible under the current legislation to dismiss employees fairly on the grounds of lack of capability to do the job, which can include poor performance.
“Employers should consider the possible reasons for poor performance such as illness, poor management, lack of training and insufficient or excessive work as part of a performance management procedure.
“The performance management procedure helps to flush such issues out. This would involve making it clear to the employee that they are not meeting expected specific standards, giving examples of where they have fallen short, identifying whether there are any training needs or any other reasons for the poor performance, giving a timescale for improvement, monitoring the employee’s progress and meeting with them at the end of the improvement period to see whether the employee now meets the standards. If not (and there is no suitable alternative employment within the business for the employee), assuming sufficient time has been given to improve and support given, it is open to the employer to dismiss the employee.
“There is no guarantee that the employee won’t nonetheless go ahead and make a claim at the Employment Tribunal but if the proper procedure has been followed the employer will be well placed to defend it.
“Going forward, the Government’s commitment to reform the Employment Tribunal system is designed to make it more difficult for an employee to claim unfair dismissal given that the qualifying period of service for making such a claim is due to increase from 12 months to 2 years.
“In addition the Government commitments include having employees pay a fee to the Tribunal to make a claim - as well as paying another fee when the hearing is listed - and giving stronger powers to Employment Judges to strike out claims. Legislation effecting such changes is due to be brought in during Spring 2012.
“While such measures may be welcomed by employers they should consider whether there may be some unintended consequences. Disgruntled employees who can’t make unfair dismissal claims may make discrimination claims instead as these claims can be made without any minimum length of service. Or employees may argue that their dismissal was for an inadmissible reason such as pregnancy or whistle-blowing, because again such claims can be made without a minimum length of service. The awards for these claims and discrimination claims are potentially unlimited in value, as opposed to being linked to loss of earnings, as in straightforward unfair dismissal claims. The danger with the changes is that the liability for employers may actually increase. However, if the employer has followed a fair performance management procedure and this is documented, this will go some way to minimizing the threat of the claims or the likelihood of them succeeding."
If you would like to discuss any of the issues raised in this article please contact Hannah Roche, Senior Associate, Employment.
