Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Why employers get dismissal wrong

26 June 2012

I’ve just read an article in Personnel Today: Top five mistakes made by employers when dismissing staff.1

It’s a solid article, giving good advice about common errors, such as failing to set out the allegations clearly and ignoring relevant evidence.

But I think the underlying reason that many employers get dismissals wrong go beyond technical mistakes about the right process or the proper steps to take. The fundamental problem is normally that, faced with a difficult and stressful task, the employer has lost their emotional balance. This leads to three fundamental errors.

A lot of dismissals go wrong because employers rush. They find themselves in a difficult situation and panic. Confronted with a distressing incident, rather than take a deep breath and think sensibly about how to respond, they go off half cocked. So people get sacked on the spot, rather than being run through a proper process – which might have shown that they weren’t actually at fault.

A lot of dismissals go wrong because employers fail to empathise with the employee concerned. So they do things that seem reasonably to them, but viewed from the employees perspective are unfair. The best advice for a manager dealing with a disciplinary process is to keep thinking ‘How would I want my manager to deal with this issue if it was me being disciplined?’ If you can keep this firmly in mind, you will avoid most of the common missteps (including rushing) Also, some employers are just mean. They don’t care about their employees and act accordingly. This, if only on pragmatic grounds, is a bad idea.

Finally, a lot of dismissals go wrong, because employers are not ruthless enough. When there is a problem, they shy away from it, put off dealing with and generally fail to grasp the nettle. Then, after weeks or months of stewing in frustration, they explode (often leading to both rushing and lack of empathy). Being a good employer sometimes means making hard decisions and having difficult conversations. Some problems with employees will go away if you just leave them alone. But most just get worse. Dealing with them promptly means that you might nip an issue in the bud before it gets really bad. It also means that you should be in the emotional shape to deal with it objectively. And the employee won’t be able to say, perhaps fairly, ‘But you never said anything about this for months!’

If you can act decisively, but calmly and with kindness, when dealing with problematic employees you will probably be okay.2 A bit of legal or HR advice is useful – but having the right attitude and the right intentions are more important.

This is, of course, much easier to advise, than it is to do.

  1. The article is written by Luke Smith based on an interview with Max Winthrop of Short Richardson & Forth LLP.

  2. ‘Probably’ and ‘okay’ are obviously different from ‘definitely’ and ‘never lose an unfair dismissal claim’.

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