Jamie Baker, Author at Customer Contact Panel

With the average award for unfair dismissal sitting at £10,812, missteps can be costly. It’s therefore essential that employers understand what a fair dismissal process looks like and what might constitute unfair dismissal.

What is a fair dismissal?

The key ingredients to a fair dismissal process are:

1. Having a valid reason to dismiss; and
2. Acting reasonably in the circumstances.

In relation to the first criteria, the Employment Rights Act 1996 lists five potentially fair reasons for dismissal. These are:

Dismissal related to an employee’s conduct (e.g. theft, fraud, bullying or negligence)
Dismissal related to the employee’s capability or qualification for the role (e.g. long-term sickness absence or performance concerns)
Redundancy (e.g. business closure)
Dismissal because of a statutory restriction, i.e. if continuing to employ the person would break the law, such as a driver losing his driving licence
Dismissal for some other substantial reason. This is a ‘catch-all’ category that employers may rely upon if none of the other potentially fair reasons for dismissal apply (e.g. the employee is handed a long prison sentence, their conduct outside of work brings the employer into disrepute, or they refuse to accept changes to contractual terms)

From a legal standpoint, however, it’s not enough that the employer has a valid reason to dismiss; you must also be able to demonstrate that you acted reasonably in the circumstances.

What is a fair dismissal procedure?

While there is no legal definition of ‘reasonableness’, in determining whether a dismissal was fair, an Employment Tribunal will consider a number of factors, including whether the employer:

Properly investigated the issues and considered mitigating circumstances
Informed the employee of the issues in writing and notified them of the potential for dismissal
Conducted a disciplinary hearing with the employee to give them an opportunity to respond
Allowed the employee to be accompanied at any hearings
Informed the employee of the decision to dismiss in writing and gave the employee the chance to appeal

What makes a dismissal unfair?

A dismissal will be considered unfair if:

The reason for dismissal does not fall under the scope of one of the five potentially fair reasons for dismissal outlined above
The employer did not follow a fair disciplinary or dismissal process and/or the decision to dismiss was outside the range of reasonable responses open to the employer.

In cases of misconduct or performance concerns, employers should follow the procedures set out in the Acas Code of Practice on Disciplinary and Grievance Procedures, as an Employment Tribunal will take this into account when assessing whether an employer has acted reasonably.

If it is found that an employer has unreasonably failed to follow the relevant procedure in the Code, a Tribunal may consider that the dismissal is unfair.

Likewise, in redundancy situations, the main elements to a fair redundancy process are:

Warning employees of redundancies
Creating and applying fair and non-discriminatory scoring criteria and consulting with employees and exploring suitable alternative employment options

If you fail to follow a fair selection or consultation process, you may find that the dismissal is deemed unfair.

An employee with at least two years’ service may be able to submit a claim to a Tribunal for unfair dismissal. Claims must generally be submitted within three months of the date the employee’s employment was terminated.

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The intention is that where the fit note is certified, such as a hospital or GP surgery, will remain the same – but who can do this will be expanded to relieve the administrative burden on doctors and GPs, as they aim to tackle the COVID backlog and deliver an extra 50 million appointments by 2024.

The changes – which apply across England, Scotland and Wales – follow the rollout of digital fit notes back in April and are intended to further simplify the process of certifying sickness-related absences.

What are fit notes and how do they work?

Employees can usually self-certify for the first seven days of illness. Beyond that, they will normally need what’s known as a fit note.
The fit note is a healthcare professional’s assessment of a patient’s fitness for work. It may say one of two things: either the employee is not fit to work, or they may be fit to work subject to certain adjustments. It is not open to GPs or other medical professionals to confirm that the employee is fit for the job they do. Employers seeking such confirmation would have to involve the services of Occupational Health to get further guidance. If following assessment, the patient is considered fit for work, they don’t need a fit note, even if it is asked for.

Once a fit note runs out, if no further fit note is sought/provided, the employer can take it as read that the employee is fit to return. At this stage, a return to work meeting should help the employer uncover if there are any risks of allowing the employee back to work or if temporary measures are required. Of note, the advice in the fit note pertains to an employee’s fitness for work in general, and not specifically their current job role. This gives employers maximum flexibility to discuss possible changes to help the employee return to work, which may include changing their duties for a while. Using the fit note to its full potential helps employers to reduce sickness absence costs – for example, in relation to sick pay, staff cover and lost productivity – and minimises the disruption caused by employees being off sick unnecessarily.

How might the new rules impact employers?

For employers, there are concerns that easier access to fit notes could lead to more people being signed off sick, resulting in higher levels of absence. Indeed, employees who may have previously put off going to their GP for a fit note due to difficulties in getting an appointment may now be inclined to take the easier route of going to a pharmacist or other healthcare professional, increasing the likelihood that they will take time off work. That said, it won’t be as simple as walking into your nearest pharmacy to get a fit note. The idea is that the HCP certifying the fit note can only do so if they are integral to the patient’s health management. They may be doing this in combination with other HCPs and it might be that there is a combined approach to the individual’s care, whereby they see multiple HCPs.

The government guidance is clear that fit notes should only be certified following a full assessment of an individual’s fitness for work, and therefore should be provided by a clinician with a holistic oversight of the individual’s condition. This will hopefully lessen any disruption to employers. The Minister for Disabled People, Health and Work, Chloe Smith MP, suggests the changes will be positive for both employees and their employers.
“The extension of fit note certification is fantastic news for patients, making it easier for them to get the support and advice they need from the right place, ensuring where possible that they can remain in work”, she said.

Another potential positive for employers is that by alleviating the practical difficulties in getting a fit note, employees should have less of a reason not to submit them. Sometimes, employees will use the excuse that they can’t provide a fit note because they are unable to get an appointment with their GP to get a fit note, and/or they don’t realise that fit notes are needed once SSP has stopped.

If an employee is past the stage of SSP, i.e. has been off work for longer than 28 weeks, employers will generally be in the realms of a capability process, but this does not mitigate the need for a fit note to evidence the genuineness of the employee’s continued sickness absence. The changes are a timely reminder that employers must continue to actively manage sickness absence, and gathering appropriate evidence plays a key part in that.

Ultimately, at this early stage, we can only speculate as to the impact of relaxed fit note rules. However, given ongoing staffing shortages and the numerous challenges businesses are currently experiencing around unexpected absences – due to factors such as COVID-19, flight delays, fuel costs and transport strikes – understandably employers may be concerned.

What should employers do now?

Going forward, the changes mean employers need to be aware that fit notes authorised by other healthcare professionals, not just doctors and GPs, will be accepted as evidence of incapacity. Organisations will need to update their absence policies to reflect this.
Additionally, employers must be aware that fit notes no longer need to be physically signed. They must, however, contain the name of the healthcare professional who has made the certification and their professional title, otherwise, they won’t be legally valid.

6 things to do when provided with a fit note:

Check whether your employee’s healthcare professional has assessed that they are not fit for work or maybe fit for work.
Check how long your employee’s fit note applies for, and whether they are expected to be fit for work when their fit note expires.
If your employee may be fit for work, discuss their fit note with them and see if you can agree on any changes to help them come back to work while it lasts.
If your employee is not fit for work, or if they may be fit for work but you can’t agree on any changes, use the fit note as evidence for your sick pay procedures.
Consider taking a copy of the fit note for your records (the employee should keep the original).
Take further advice from a workplace Occupational Health professional or your HR Team.

For advice on managing workplace sickness contact WorkNest at CCP@worknest.com

What’s more, employees now have an all-around greater awareness of their employer’s responsibilities, as well as their own rights. And with the Great Resignation tipping the balance of power in their favour, employees may feel emboldened to take work issues further than they would have dared to previously.

With this in mind, here are five key policies all businesses should have in order to help them prevent and manage disputes effectively.

1. Grievance policy

All organisations should have a grievance policy and procedure, as this will help employees to understand the correct steps to follow when they have a concern, problem or complaint that they wish to raise with their employer that they feel they have been unable to resolve informally.

2. Equality and diversity policy

Disputes are commonly raised around bullying and harassment, and issues of equality and fairness, especially in relation to employees with protected characteristics such as race, sex and disability. In order to show that equality and diversity are at the core of your business, it’s essential that you have a policy around it.

3. Pay and performance

Having a pay policy will help to ensure equal pay is given for work of equal value by setting out how you apply certain pay to certain roles. This in turn will reduce the potential for complaints of unfairness and potentially even equal pay claims. A pay policy will also help you to communicate pay principles, such as when you will pay overtime and how certain bonuses are awarded, thereby preventing disputes arising out of misunderstanding.

4. Disciplinary policy

A disciplinary policy is one of an organisation’s tools for managing disputes, and employers must not be afraid to use this policy in the right circumstances – in other words, once all informal problem-solving avenues have been explored, or where the performance or conduct warrants it.

5. COVID-19 policy

A lack of clear post-COVID policies emerged amongst the top three factors that would prompt an employee to raise a complaint or bring legal action, according to our Mind the Gap report. Simply put, people want to know how the organisation will deal with issues such as homeworking, vaccination and self-isolation, and this is best done through a COVID-19 policy. This list is not exhaustive, and it’s extremely valuable to have policies around all aspects of the employment relationship. After all, the number one factor that would prompt employees to bring a complaint according to our research? A lack of communication. The more employees understand the better; if things are communicated to them through policies and other means, the less likely you will be to end up with a dispute.

For advice on creating watertight HR policies or to enquire about fixed-fee support, contact WorkNest at CCP@worknest.com.

From vaccination to workplace safety measures, the pandemic has introduced plenty of new potential sources of conflict, and in many cases, employers’ COVID response and their handling of COVID-related issues continue to be a source of resentment, which could lead to disputes in the workplace.