Sheik Khan, Head of Industrial Relations at the JIB, untangles another employment dispute case and suggests ways you can avoid similar trouble in your own business.
One thing the Joint Industry Board (JIB) is renowned for is its impartiality in that it doesn’t represent either the employer or the employee. In my previous article I wrote about the importance of employers following a procedure, reasonably investigating and making a decision based upon genuine belief and stating that if they do these things, they shouldn’t go far wrong. In the particular illustration I used, based upon a case that came through the JIB procedures, we saw that the employer’s decision to dismiss was upheld by a JIB Disputes Committee. This month, I will give you a case where we can see what happens when it goes wrong…
Reasonable process?
A case we had last year was lodged against a medium-sized employer. As I highlighted previously, many of our members are micro-businesses. However this employer employs over 50 electricians. It has an HR Department and a number of professionally prepared policies, one of which was a redundancy policy. This policy allowed for all of the right things – at risk meetings, individual consultation, the right to representation, a matrix scoring table and so on. The employer unfortunately conducted a tick box consultation exercise – it held individual meetings but the two main areas of concern were that they did not genuinely and reasonably complete the matrix (for example, they could not provide any details about alleged bad timekeeping, the performance marks were low etc) and they also could not demonstrate the steps they had taken to mitigate the redundancies following suggestions by the individual e.g. removal of agency workers. In this case the employer took an entrenched view.
From an outsider’s opinion, the overall process was not reasonable. What came out in the evidence was that there was an underlying story. This had a knock on effect in that the employer did not treat the employee in the same way as it had other members of staff and looked for an excuse to terminate the individual’s employment. There was no argument about the company having to make redundancies, but the process was not fair and if a fair marking process had been put in place, the employee would not have lost their job.
“Employers need to separate their personal and professional views. This is, of course, easier said than done sometimes but employers need to do this or else they could be involved in an unfair dismissal claim, which could end up costing a lot more than a redundancy payment.”
Having found the dismissal unfair, the JIB then awarded compensation. The only saving grace for the employer was that as this was a genuine redundancy dismissal, the JIB could not award up to 25% extra in the compensation allowable under the Acas Code of Practice. The employer submitted an appeal, the grounds of which were rejected. This case highlighted a number of things employers need to be aware of. Firstly when conducting a redundancy selection matrix it is crucial to treat everybody in the same way and to ensure that both subjective and objective views can be readily justified. Employers need to separate their personal and professional views. This is, of course, easier said than done sometimes but employers need to do this or else they could be involved in an unfair dismissal claim, which could end up costing a lot more than a redundancy payment.
We do not live in a perfect world and we all irritate each other sometimes but personal views must not spill into the redundancy process. If there is an individual who is not performing or has conduct issues then management needs to address these issues properly and not look for spurious ways of dismissing the employee or trying to fabricate matrix scores when there is a redundancy. Similarly, employees are not always perfect. But again, if there is a problem then they should try and resolve an issue informally and if this does not work, then they can contact their Union, Acas or the Citizens’ Advice Bureau (CAB). JIB members – employers, employees and apprentices can also contact us; not only can we advise, but we can also try to resolve any issues before they become formal.
