Small Employer Needs Advice

Uncertain

Ewarwoowar2 wrote: »

The idea of the consultation is to give the employees enough information so they can possibly come up with ideas to avoid redundancy.

You then consider the information from the employees and make a decision whether redundancies will be necessary.

If you still want to make redundancies, then you select a pool of people at risk of redundancy e.g. all the sales people or people with similar skills. You then go through a selection procedure, using a clear and open scoring system. The person or people with the lowest scores are then made dismissed. It is advisable to meet with the employee selected for redundancy prior to dismissal to give them their scores and a fighting chance to argue that they shouldn't be made redundant. Once dismissed, they should be give the opportunity to appeal the decision.

If you are making 20 or more people redundant, there is a statutory redundancy process. If you fail to comply with this, the employees are entitled to up to 13 weeks wage. This doesn't apply to you. All employers used to have to comply with a set three-stage procedure when making any employees redundant, but that was removed in April 2009. The dismissal has to be generally fair.

The tribunal will accept that you are a small business with limited resources. As long as the need for redundancies is genuine, i.e. you don't have another ulterior reason for dismissing the employee, the tribunal will not really question your decision to dismiss. They might be unhappy that you didn't consult with the employee and give you a slap on the wrist (award the employee about 4 or 5 weeks pay).

As a poster said above, going back through the consultation period may look like a sham.

My advice, as an employment solicitor would be to meet with the employee you've given notice to, ask whether she or he wants to appeal the decision. If so, ask them on what grounds. You can then deal with any complaint the employee has by way of appeal. For example, if they complaint that they were unfairly selected, you can look again at this. If they complain that they were consulate with, you can explore with them whether it would have made any difference.

PM me if you have any more questions.

I don't doubt this is excellent advice from a technical point of view.

What it doesn't, with all respect, allow for is the time, cost and energy that will be involved in defending a claim even if the end result is "a slap on the wrist (award the employee about 4 or 5 weeks pay)" obviously on top of any redundancy due.

Given what has happened so far would it not be better to offer a CA with, say, £1K more than the redundancy entitlement and have an end to it?

olly300

Uncertain wrote: »

I don't doubt this is excellent advice from a technical point of view.

What it doesn't, with all respect, allow for is the time, cost and energy that will be involved in defending a claim even if the end result is "a slap on the wrist (award the employee about 4 or 5 weeks pay)" obviously on top of any redundancy due.

Given what has happened so far would it not be better to offer a CA with, say, £1K more than the redundancy entitlement and have an end to it?

Off course it would. And off course taking proper advice in the first place before offering them a CA would but the OP doesn't want to spend money now even though most people are scared of solicitors.

S/he will only learn what a mistake it is when the employee takes them to a tribunal and they have to fight it.

kidsun

But from what your saying Olly , i have no chance of winning a tribunal , even though legally I didn't have to consult , I had to be fair . And perhaps I was fair , if she was the only one aty her grade .
Do people win appeals if they didn't consult .
Its not a matter of not paying , but should I pay if I would win ?

Uncertain

kidsun wrote: »

But from what your saying Olly , i have no chance of winning a tribunal , even though legally I didn't have to consult , I had to be fair . And perhaps I was fair , if she was the only one aty her grade .
Do people win appeals if they didn't consult .
Its not a matter of not paying , but should I pay if I would win ?

You should be looking at the bottom line cost to your clearly struggling business. If this goes to an ET it will cost you a great deal in time and energy and, unless you are daft enough to represent yourself, legal fees. Forget ideas of right and wrong in this and look after your business. Otherwise it will be rest of the staff then you!

I've seen it happen too often.

Sorry!

Zazen999

Kidsun - the aim here is to avoid being in the situation before it ever going to a tribunal....what olly is trying to say is that getting the necessary legal information before any action is worth every penny. No, legally you don't have to consult; but you still have to follow a fair system to make people redundant...paying for this [and perhaps some consultancy on HR and the law] would be cheaper than a Compromise Agreement if you do things wrong.....

olly300

kidsun wrote: »

But from what your saying Olly , i have no chance of winning a tribunal , even though legally I didn't have to consult , I had to be fair . And perhaps I was fair , if she was the only one aty her grade .
Do people win appeals if they didn't consult .
Its not a matter of not paying , but should I pay if I would win ?

No I'm not saying you have no chance of winning a tribunal I'm saying it will cost you more financially regardless of whether you win or lose then simply getting proper legal advice* now and nipping any problems in the bud.

How much time are you spending on this simple question that you could be spending making your business more financially viable i.e. make more money? How much stress are you under from this matter as well as stressing about your business's financial state?

Well if the employee takes you all the way to the tribunal you will be out of pocket regardless of whether:
a. You win or lose
b. You have an solicitor represent you or not.
In addition your will be even more stressed especially if you won't have a solicitor as you won't have a clue whether what you have done is considered right in anyway.

If you don't have a solicitor then you won't be working at your shop for a good few days as you will be sorting out paperwork, trying to gleam legal advice from people, photocopying documents and sending copies of documents to the ex-employee at a minimum.

Then if the employee is smart (well she is causing you trouble already as she has worked out you don't have a clue ) she will use a "no win no fee" solicitor to run rings around you before and during the hearing. As a business the option of "no win no fee" is not open to you so if you use a solicitor once the tribunal claim has started you will quickly find the costs escalate.

Also an employment tribunal is no longer a layman's court as employment law has got very complex therefore if you don't have a solicitor and the other side has, it is easier for them to win. One thing I should point out is that your ex-employees solicitor will put in for as many claims as they think they can get away with regardless of whether they have any chance of succeeding.

Therefore the advice I've received from the employer solicitor I've used, and from other small business owners who have been in situations like yours is to nip the problem in the bud asap. And if that involves paying for advice and in the worse case also giving her some money in a compromise agreement to go away, then do it as it's cheaper now that if you are taken to a tribunal regardless of the result.

*According to all the solicitors I've spoken to ACAS is not regarded as proper legal advice. And having had them involved in my own case I know why. Some of their people are very good while, others are so naive they are dangerous.

Ewarwoowar2

Uncertain wrote: »

I don't doubt this is excellent advice from a technical point of view.

Uncertain wrote: »

What it doesn't, with all respect, allow for is the time, cost and energy that will be involved in defending a claim even if the end result is "a slap on the wrist (award the employee about 4 or 5 weeks pay)" obviously on top of any redundancy due.

Given what has happened so far would it not be better to offer a CA with, say, £1K more than the redundancy entitlement and have an end to it?

It is excellent advice from a technical point of view, you condescending !!!!. It's also good practical advice, developed from advising employers and employees over many years.

If you want someone to sign a compromise agreement, then they need to take independent legal advice. The employer, in general has to pay for this, so your plan has already cost the OP approximately £1400.

The solicitor will also advise the employee that they have been unfairly dismissed and could take the employer to the tribunal. Therefore, in most cases the solicitor will ask for more money. If you don't pay up the employee will have a solicitor in place ready to go to the tribunal.

So your great idea is going to cost a hard-strapped employer a minimum of £1400, more likely £2000. In addition, the OP is going to have to deal with the employee's solicitor, pay for a compromise agreement, etc… and you have referred the employee with a good employment tribunal claim to a solicitor and paid for them to get legal advice.

By actually sitting down with the employee, listening to her concerns about the redundancy process and reacting appropriately, any sort of payment (excluding redundancy) can be avoided as could a possible tribunal claim.

In my experience, advocating "give the employee a compromise agreement and throw some money at them", is lazy advice, which ultimately is very costly to the employer.

Uncertain

Ewarwoowar2 wrote: »

If you want someone to sign a compromise agreement, then they need to take independent legal advice. The employer, in general has to pay for this, so your plan has already cost the OP approximately £1400.

Yes, I'm well aware of what is involved. If you look further up the thread you will see that I have made that point.......

Ewarwoowar2 wrote: »

So you're great idea is going to cost a hard-strapped employer a minimum of £1400, more likely £2000. In addition, the OP is going to have to deal with the employee's solicitor, pay for a compromise agreement, etc…
In my experience, advocating "give the employee a compromise agreement and throw some money at them", is lazy advice, which ultimately is very costly to the employer.

Yes, but your plan only works if "sitting down with the employee and listening to their concerns" actually dissuades them from making a claim.

As you said, if they take advice, they will probably be told they have a worthwhile claim. If they have legal expenses as part of their house insurance they will likely use it. Or maybe they will go it alone and fill in an ET1. They have basically nothing to lose. They will also no doubt go round bad mouthing the employer to all their friends which will do his struggling business no good at all.

What you underestimate is the stress and strain involved in defending such a claim. It is easy with your legal knowledge to stay detached and not take it personally. However, when it is your first time and when trying to keep a business going that is clearly struggling it is the last thing you need. It will involve hours of work and worry, considerable cost and, if it gets to a hearing, time away from the shop. The shopkeeper can't win in that scenario, it is just a question of how much he loses. Yes, the ET might find in his favour but is that a win?

Sorry, but I have seen far to many small businesses get involved in these kinds of disputes that could have been settled early on relatively cheaply.

To be blunt it is usually the ones that are struggling that waste energy in petty fights rather than concentrating on making the business work. Still, it gives them somebody to blame when it all goes t1ts up.

Yes, my solution would probably cost him £2.5K all up but that is the the end of it. Probably six weeks wages. It would also prevent any negative publicity and should keep the grapevine moderated.

Unless you talk the employee out of making a claim at all, how much is your solution going to cost in real terms?

Ewarwoowar2

Uncertain wrote: »

Unless you talk the employee out of making a claim at all, how much is your solution going to cost in real terms?

I've dealt with these issues many, many times for small employers, NHS trusts, corporations and individuals. I know how it all plays out; I know how much stress it puts an employer under to defend a claim and I know how much each option costs.

I also know that most employees if treated with dignity, rather than sent to a solicitor with a compromise agreement, will not sue an employer. Even if they did, claims can be settled quickly via ACAS without the need to go through a full hearing and without the need for the employer to pay for a compromise agreement and the employee's solicitor's costs. Only a small percentage of claims ever reach a tribunal.

In my experience, it's better to give an employee a couple of weeks extra pay and get them to sign a letter to say that they except the money in compromise of a claim, instead of a full blown compromise agreement involving the employee seeing a solicitor.

I deal day in-day out with tribunal claims and proving employment advice. What are your credentials for your know-it-all approach?

dickydonkin

Ewarwoowar2 wrote: »

I've dealt with these issues many, many times for small employers, NHS trusts, corporations and individuals. I know how it all plays out; I know how much stress it puts an employer under to defend a claim and I know how much each option costs.

I also know that most employees if treated with dignity, rather than sent to a solicitor with a compromise agreement, will not sue an employer. Even if they did, claims can be settled quickly via ACAS without the need to go through a full hearing and without the need for the employer to pay for a compromise agreement and the employee's solicitor's costs. Only a small percentage of claims ever reach a tribunal.

In my experience, it's better to give an employee a couple of weeks extra pay and get them to sign a letter to say that they except the money in compromise of a claim, instead of a full blown compromise agreement involving the employee seeing a solicitor.

I deal day in-day out with tribunal claims and proving employment advice. What are your credentials for your know-it-all approach?

So solicitors with many years experience are never wrong or just always right...........?