30 October 1998

Do it by the book, or

risk a claim

Dealing with an

unsatisfactory worker is

never easy, but there is a

right and a wrong way of

proceeding

DISMISSAL and discipline are two of the most frequent staff management headaches for farmers. One common way of dealing with these issues is to hope they will go away, says Mandy Lyne, a partner at Cambridge solicitor Taylor Vinters.

Others tackle problem staff by taking a positive management attitude in the hope that this would encourage better performance or behaviour. Unfortunately, this often involves avoiding saying anything negative and certainly avoiding giving any written warnings.

Those who had confronted the issues often found that lack of evidence prevented them from acting. In particular, the nature of farm work, with staff often working long hours alone in remote parts of the farm made the collection of such evidence difficult, Mrs Lyne told the 1998 Agrilaw seminar.

Pen and paper shortages were common too, where an employee might have been tackled several times but no record existed and so dates had been forgotten along with exactly what was said.

Regrettably, many situations led to what Mrs Lyne describes as the "end of the tether syndrome" where employers had simply had enough of an unsatisfactory employee and had acted in haste only to find themselves facing an unfair dismissal claim.

"There is still considerable ignorance of unfair dismissal on both sides but awareness is increasing," says Mrs Lyne. Awards for unfair dismissal are up to a maximum of around £25,000 but there are costs too and preparing for a tribunal hearing may take a great deal of time and prove decidedly stressful.

Bad behaviour

Where behaviour or performance is causing a problem, then the aim should be to stop bad behaviour and to achieve a high-performing employee, says Mrs Lyne. If this is unsuccessful, then the aim is to be rid of the employee without penalty or cost. "This generally means without a claim being made for unfair dismissal."

While a claim for unfair dismissal is a risk, it is possible to avoid this if the right procedure is followed. But many farmers have left themselves in a difficult position by failing to tackle problems at an early stage, and often failing to record what had taken place, says Mrs Lyne.

While gross misconduct can be punished by dismissal without prior written warnings, any incident of misconduct which merits disciplinary action should be dealt with on a step-by-step basis:

&#8226 Investigation.

&#8226 Notify employee of details of investigation.

&#8226 Give notice of disciplinary hearing.

&#8226 Allow employee to be accompanied.

&#8226 Allow employee to defend the accusation.

&#8226 Decision

If the employer has his own written disciplinary procedures, these should be followed. Otherwise, ACAS guidelines suggest an oral warning followed by a first written and then a final written warning with dismissal as the final sanction.

Likely examples of misconduct include bad timekeeping, failure to turn up for work, abusive language, threatening or violent behaviour, theft of produce, equipment or tools, and rudeness to or harassing of someone of a different ethnic or national origin. This last example would include Scots, Welsh and Irish people, points out Mrs Lyne.

Employers may also be relying too heavily on the two years service rule for dismissals, she warned. The general rule is that in order to bring an unfair dismissal claim, an employee must have two years continuous service, but a recent case held this rule to be indirectly discriminatory on grounds of sex. It is now being appealed and has been referred to the European Court of Justice by the House of Lords.

Tribunal hearing

However, Mrs Lyne says that the risk of any 1998 dismissal of an employee with less than one years service succeeding in getting a Tribunal hearing is extremely small, but many tribunals are accepting (and then adjourning until after the European Courts decision), claims by employees with more than one years employment.

Nevertheless, unfair dismissal can be claimed without two years service if the employee can prove that the main reason for the dismissal was related to any of the following:

&#8226 That he or she had asserted a statutory right, such as a complaint about a deduction from wages, or had not been given a written statement of employment particulars within two months of the start of work

&#8226 That the employee brought to the employers attention a health and safety concern which he or she reasonable believed harmful or potentially harmful

&#8226 The employees pregnancy or any reason connected with her pregnancy

&#8226 The employee claimed rights under the new Working Time Regulations. It is also proposed that if an employee complains about not having received the new minimum wage and is dismissed, they will be entitled to claim unfair dismissal and that there will be no defence to that claim.

&#8226 Making payments to settle unfair dismissal claims can be a risky move, as unless these are properly structured and worded, a claim may still be brought in future. "A mere letter stating that a payment is made in full and final settlement will not give the employer protection against a potential claim," warns Mrs Lyne.

A properly drafted compromise agreement would provide that protection. But the employee must have received advice on the agreement from an independent solicitor or other adviser qualified to advise the employee.

&#8226 Unless the correct procedures are followed in selecting for redundancy, then this may also be held to be an unfair dismissal (see panel).

&#8226 Redundancy procedure: Selection policy must be devised for situations where pool of possible candidates is more than one. Farming is particularly affected as there are many shared tasks. Fair, objective criteria need to be chosen and applied fairly – last in, first out is common but other factors such as skills and disciplinary record can be used.

&#8226 Consultation: Where fewer than 20 employees are being made redundant at one time, consultation only has to be with the individual. Must be genuine consultation covering application of selection criteria and ways of avoiding redundancy such as alternative employment. Consultation should take place before any redundancy decision is made.

&#8226 Alternative employment: Employer must seek possibility of alternative positions within organisation and any associated organisations. Should offer any job available and that employee is capable of doing, even where status and pay are lower.

POORPERFORMANCE

&#8226 Employee must have opportunity to defend himself, as in cases of misconduct.

&#8226 Barriers to good performance encountered by employee must be removed where reasonably practicable.

&#8226 Training or other assistance should be given where reasonable.

&#8226 Realistic and reasonable goals and timescales should be set.

&#8226 Letter of warning should set out standards and timescales, indicate what stage of warning it is and what are the consequences of failure.

&#8226 Dismissal can be the final stage but it should almost always have been preceded by appropriate written warnings.