Adapting a dismissal process during the pandemic

Life goes on as normal as it can do in the current employment climate and it will unfortunately mean that employees will lose their jobs for any number of reasons.

Hundreds of thousands of jobs have already been lost as a result of the coronavirus (Covid-19) pandemic.

The unemployment rate is rising even as people return to their workplace following the easing of national lockdown restrictions.

Most recent figures from the Office for National Statistics (ONS) reveal that unemployment rose to 4.5 per cent in the three months to August as the total number of jobless rose by 138,000 (1)

It is anticipated that the situation will get worse when the furlough scheme comes to an end this month (2)

The high number of redundancies in recent months and feared redundancy dismissals have made, and continue to make, headlines (3)

Apart from redundancy, there are a number of other fair reasons that can lead to an employee being dismissed.

Employers are still having to address matters of employee misconduct, health and safety breaches and underperformance. This will present its own challenges in the current climate.

Obviously, employment law and the ACAS Code of Practice on disciplinary and grievance procedures still apply during the pandemic.

Even in cases where the reason for dismissal is a fair one, the dismissal is only fair if the employer has acted reasonably during the process that leads to the decision being made.

By law, there are five potential reasons for dismissing someone fairly. These are:

• Conduct – when the employee has done something that is inappropriate or not acceptable
• Capability – when the employee is not able to do the job or does not have the right qualifications
• Redundancy – when the job is no longer needed
• A legal reason – when the employee cannot do their job legally, for example a lorry driver banned from driving
• ‘Some other substantial reason’ – a term used for a wide variety of other situations

Any case that may lead to the dismissal of an employee can prove challenging in any circumstances.

Any formal process that may result in a dismissal must be conducted in a manner that keeps within public health guidelines around social distancing and the closure or phased re-opening of any particular workplace.

ACAS advise employers to try to find a safe, fair and reasonable way to go ahead with procedures. If this is not possible, they should consider if it might be fair to suspend a procedure.

Each case should be judged on its merits and circumstances. An employer should fairly consider how best to proceed if an employee raises any concerns about a process.

Where a workplace is open, if all those involved can attend a meeting in person, the employer must consider if it can be safely arranged. The employer must follow the government's guidelines on working safely during coronavirus, including carrying out a risk assessment of its workplace.

Many meetings and hearings are being held remotely using video conference facilities. In doing so it is important to ensure everyone has access to the technology, reasonable adjustments are in place for anyone with a disability and that any evidence is accessible.

For disciplinary and grievance hearings an employee has a statutory right to be accompanied by a suitable companion (4). Arrangements should be made to allow a chosen companion to take part in a meeting.

Although there is no statutory right for an employee to be accompanied at performance, capability or redundancy consultation meetings, it is good practice to allow it. Where it is permitted, suitable arrangements should be made to allow the companion to take part.

In any case where an employee is dismissed, an employer must have a valid reason for dismissing an employee.

Every employee who has the qualifying period of service has the right not to be subject to an unfair dismissal (5)

However a process is carried out it should always be fair and reasonable in the circumstances. Whether or not it was, can be a deciding factor in any subsequent legal proceedings.

References:

(1) Most recent figures from the Office for National Statistics [Internet] www.ons.gov.uk [Cited 13.10.20] https://www.ons.gov.uk/employmentandlabourmarket/peoplenotinwork/unemployment

(2)  Furlough Scheme comes to an end [Internet] www..gov.uk [Cited 13.10.20]  https://www.gov.uk/government/news/chancellor-extends-furlough-scheme-until-october.

(3) Higher Redundancy figures [Internet] www bbc.co.uk [Cited 13.10.20]  https://www.bbc.co.uk/news/business-54392177.

(4) Accompanied by a suitable companion [Internet] www.legislation.gov.uk [Cited 13.10.20]  https://www.legislation.gov.uk/ukpga/1999/26/section/10.

(5) Unfair Dismissal [Internet] castleassociates.org.uk [Cited 13.10.20] https://castleassociates.org.uk/support-centre/what-unfair-dismissal

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