Dismissing Staff

If proper procedures are adhered to a lot of time and money can be saved and any disruption to the business kept to a minimum. We will help you through the entire process. 

 

If dismissals are handled incorrectly an employee could bring an unfair dismissal claim in the employment tribunal. 

 

Eligibility to claim unfair dismissal 

 

Although an employee must usually have two years continuous length of service to be eligible to claim unfair dismissal this is not always the case, eg claims for raising health and safety concerns or asserting statutory rights are automatically unfair dismissals for which there is no minimum length of service requirement. These are just two examples of automatically unfair dismissals, of which there are many. 

 

If an employee has a ‘protected characteristic’ such as pregnancy a claim for discrimination can be brought; again there is no requirement for a minimum length of service. 

 

One way of protecting the business when dismissing employees to have a ‘without prejudice’ protected conversation with the employee(s) with a view to reaching an agreement that the employee that they will not bring any claims against the business in the future in exchange for a termination payment. 

 

Once an agreement has been reached the terms can be recorded in a written agreement called a Settlement Agreement. 

 

Settlement Agreements are legally binding confidential agreements which set out the terms agreed between the parties, including salary, redundancy pay and holiday pay as well as any redundancy or termination payment. 

 

Clauses to protect the reputation and business interests of the business should also be included in a Settlement Agreement. The Agreement should include confidentiality clauses and appropriate restrictive covenants, such as those which impose a condition on the employee that they do not poach customers or employees of the business. 

 

The main objective of a Settlement Agreement is to prevent the employee from bringing certain claims against the employer once payment has been made. This enables the parties to have a ‘clean break’ and provides certainty and reassurance to the business. 

 

Settlement Agreements are a simple and cost-effective way of avoiding the problem of an employee or ex-employee issuing employment tribunal or court proceedings against the business later on and the protection will often extend to directors, employees and agents of the business. 

 

If there is a dispute between an employer and an employee it is important to make clear to the employee that any discussions which take place in order to try to reach a settlement are ‘without prejudice.’ This means that anything said during the meeting cannot be used in evidence in Court or Tribunal. 

 

Even in cases where there is no dispute between the parties, an employer should still ensure that any pre-termination discussions are expressly stated to be ‘without prejudice’ and are ‘protected conversations’ under Section 111A of the Employment Rights Act 1996. 

 

Provided that there is no ‘improper conduct’ anything said during a protected conversation will be inadmissible in evidence. 

 

We can advise you on following the correct procedure and assist in every step of the process, including drafting a legally-binding settlement agreement for your business. 

 

For a confidential discussion to find out how we can help call 01925 937070 or email Diane Massey at diane@dsmlegal.co.uk.