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Can’t Do? Won’t Do? Time to Go?: A blog by Connect Yorkshire CEO Nick Butler

28th July 2017

At our Training Seminar in Leeds earlier this month Sarah Tahamtani from our Legal Partner, Clarion Solicitors, gave a talk under the above heading. The content has become even more relevant since earlier this week the Supreme Court ruled that the fees for bringing an industrial tribunal claim were unlawful; this is likely to lead to an increase in the number of unfair dismissal claims – the number of which had fallen dramatically (79%) since the charges were introduced in 2013.


So How To  Do it


Unfair Dismissal – Two Steps


You must have a Fair Reason and you must have Acted Reasonably


5 Possible Fair Reasons


Conduct, Capability, Redundancy, Breach of Statutory Requirement or Some Other Substantial Reason such as a clash of personalities at Board level making the position no longer tenable


Can’t Do – Capability


Poor performance typically lacking skill, aptitude or qualifications or Ill Health


Won’t Do – Conduct


The Burchell Test – 3 Limbs – Genuine Belief in the employee’s guilt, Reasonable Grounds for that belief and carried out as much investigation as was reasonable in the circumstances.


Act Reasonably


The Tribunal will recognise that only you know how to run your business but you must act within the “reasonableness range”. Broadly the range starts with a verbal warning, then a written warning, then a final written warning, then dismissal with notice and finally dismissal without notice.


Procedural Fairness


ACAS Code


In summary – Investigate, Consult, Right to be accompanied, for example, by a colleague or Union rep and Right of Appeal. If you fail the Tribunal will award a 25% uplift to the award


Letter of Dismissal


Set out in detail in your letter of dismissal why you have dismissed the employee and include that you have taken into account their length of service and previous disciplinary record


Capability (employee can’t do) v Conduct (employees won’t do)


The difference is important because the reasonable reaction to each is different


Performance – Support and Training, Flexible timescales, Aim to retain, Takes longer to resolve, Can look at other possible roles


Conduct – Punishment, Fixed timescales, Deterrent, Quick to resolve, Different alternatives


The week after next (on holiday next week!)


I will cover Legal Risks, Process. The Costs of failing, Without Prejudice and Protected Conversations. Settlement Agreements-and much more


Health Warning


The contents of the blog are just my best efforts at remembering what was said at the Clarion Training Seminar for our members; if you are facing any of these issues for goodness sake get advice from Sarah Tahamtani – she’s great


Nick Butler


28/07/17


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