18 July 2024

Banging heads together and hand shakes are out, but S111A, COT3 and SA’s are in!

Running a business would be so much easier if you didn't have to employ anyone. However, the nitty gritty complex and time consuming process of trying to get people to get on with each other, work together or leave if they don't do their job is the norm. So, if banging heads together is no longer pc, what are the options?
 
S111A
S111A protected conversations are popular. Previously, employers who declared their hand and told employees it would be best if they left now with some money risked a claim of unfair dismissal and/or allegations that any subsequent action taken against that employee was pre-judged. In 2013 the Government introduced legislation that allowed employers to have confidential discussions without prejudice to quickly and amicably end the employment relationship, even when no dispute exists. 
 
COT3
COT3 ACAS will assist with resolving disputes with a legally binding COT3  agreement which may include the employee leaving and not pursuing alleged claims. The disadvantage of COT3's is that they can be slow (2 - 3 weeks) and ACAS may not agree to settle disputes outside the jurisdiction of an Employment Tribunal such as restrictive covenants. The advantages are that there is no contribution to legal costs and they are usually simple agreements.
 
Settlement Agreements (SA's) 
SA's work and can be useful for more complex disputes. The disadvantage is that the employer is required to contribute towards the employee's legal costs which are usually between  £350 and £1,000 and the fear is that the legal advice to the employee may encourage them to bring a claim rather than settle, however this is rare.
 
Handshakes and Best Wishes Letters 
Thankfully, legally binding agreements are not always necessary, and a handshake can work. However, if you are letting someone go, a letter explaining why is advisable. Some employers still think it is better to avoid telling an employee why their employment is being terminated to avoid confrontation. However, I disagree and such practices can and do back fire, for example when the dismissed employee issues a claim alleging their dismissal was an act of discrimination. A termination letter that explains why their employment was terminated, is a better defence than retrospectively explaining the dismissal to a judge and being asked why the real reason was not included in the letter. That said, employees are unpredictable and I have had to defend a discrimination claim that flowers, a leaving card and a present were insufficient departing gifts and proof of less favourable treatment. 
 
Informal discussions 
These have their place but unless handled fairly and documented as having taken place, employers may find it difficult to prove that attempts to resolve disputes have been made.
 
Grievance procedure 
Following your internal procedure shows that complaints are taken seriously. Sometimes, a verbal grievance should be investigated, even if it is not raised formally. For example, allegations of sexual harassment that the complainant does not want to put in writing should be investigated for the benefit of the complainant, the alleged perpetrator and the business. 
 
Mediation
This can be useful to try and resolve a seemingly intractable disputes.  Yolandie Gibbs [email protected] (BPIF HR Business Partner) is a trained mediator who provides this service on a consultancy basis.
 
If you are thinking of terminating someone's employment, a call to our HR Team might save you a lot of future grief.