Employer: ‘I’ve told my employee they can’t come back to work, what do I do now?’

Employment law adviser:  *Sigh*

The first piece of advice to our reader is…don’t do this! Always take advice before you say anything to an employee that even vaguely suggests they can’t continue working for your business.

In the case of Cosmeceuticals Ltd v Parkin the Employment Appeal Tribunal determined that the statutory definition of the Effective Date of Dismissal is the date that a summary dismissal is communicated to the employee, even where notice ought to have applied and wasn’t given. And in the light of the recent ruling that tribunal fees were unlawful, it’s even more important to follow correct procedures.

In this particular case the employer had concerns over Ms Parkin’s capability in her role. During an informal meeting the employer told her that she would not be able to return to the role she held and made poor attempts to discuss alternative employment for her.  She was later put on garden leave and the employer wrote to her, 28 days after the initial meeting, to confirm her dismissal giving notice of four weeks from the date of the letter.

The Employment Appeal Tribunal found that the written dismissal letter giving notice was not the event that terminated the contract. The words spoken by the employer in the first meeting were sufficient to terminate the contract of employment summarily and without due notice. The fact that the employer later attempted to cover up his error by then following due process was irrelevant and the Effective Date of Dismissal occurred on the date of the first discussion.

This concerns advisers for a number of reasons:

  1. The law requires Employers to show that the reasons for dismissal are fair. An irrational or sometimes emotional reaction to an employee who isn’t performing or has acted in a manner which is unacceptable to your business could result in a detrimental outcome. It is important to take stock, collect your thoughts and check your reasoning before determining the employee’s fate, or you may be at risk of the reasons being objectively unfair.
  1. An essential element to a fair dismissal also requires you to have followed a fair process. Most employers have contractual and policy procedures for capability and conduct matters. It is important that these procedures are followed rather than decisions simply being communicated immediately and without carefully consulting with the employee through a formal process.
  1. Where an Employee is dismissed immediately an Employment Tribunal has the right to take account of the notice period which would have applied had the dismissal been performed correctly. Despite the two year qualifying service requirement to bring most unfair dismissal claims, employers dismissing on the spot may fall foul of notice provisions which take them past the two year service mark, allowing a legal claim to be registered.

This case serves as a sound reminder that employers are best advised to take careful advice on a case by case basis before challenging a problem employee. Once the wrong thing has been said there is nothing your advisers can do to change this. A dismissal can be judged to have taken effect from verbal conversations and attempts to remedy the situation may not work. Timing and approach is everything when it comes to avoiding legal disputes.