The leaked Beecroft report to Government recommends ending an employee’s right to claim unfair dismissal. Is this a problem which needs to be solved?

The problem may be less with current legislation and more with why organisations find themselves having to defend a claim. Often the issue is the unwillingness or inability of managers to make clear what performance and behaviours are expected of their employees and to take objective but decisive action where those expectations are not being met.  Whether public sector or commercial organisations have more or less complex rules on how these situations are dealt with is less important than the manager being well trained and prepared to carry out their responsibilities.  The legislation only provides the right not be unfairly dismissed – it does not stop an employer removing an ineffective or disruptive employee.  There is always a case to discuss in a wider social or competitiveness context whether unfair dismissal protection rights are granted at 6, 12 or 24 months etc. and whether the degree of complexity of any process is sufficiently balanced and fair to enable an external assessment as to whether an employer has been reasonable in their dismissal decisions.  Having legislation in place does provide an incentive for organisations to improve the capabilities of their managers, which must be a good thing.       

Rather than looking to repeal of legislation brought in to protect employees from unscrupulous employers, shouldn’t we look more to the way employers and their managers handle poor performers? In my experience it is not necessarily the fear of ending up in tribunal that paralyses most companies into inaction when faced with poorly performing employees, it is the lack of enthusiasm for having to put in place and manage comprehensive performance improvement plans. Time and time again I have sat with managers and explained how they need to invest time and effort into giving people an opportunity to improve.  More often than not the response is that it would take too long, cost too much, and have a negative impact on the team. My role as a “business facilitator” is to find other ways to solve the problem, ways that divert less time and energy away from the achievement of business objectives. If we have processes in place - probationary periods, performance management systems and good old face to face management why is it such a problem?  Why are so many poor performers coasting in businesses? As HR professionals it’s a question we need to think about long and hard. We have been told that our raison d’être is to be a business discipline and to support organisational performance.  However we also need to remember that we must be the grit in the oyster, we need to have the courage and teeth to challenge management and ultimately to ensure that business can be enacted that is both profitable and ethical.        

Unfair Dismissal. Conversation between manager and HR. “This person needs to go, they don`t perform.” “How long has this been the case?” “Years, they have always been useless.” “Have you spoken to them about it and kept records or did this uselessness come on over night?” “Ha, you can`t get rid of anybody!” Sound familiar? It is not really the tribunal system, the inability to act on performance often comes from within. Workers need to be protected from the autocrat with a toothache. Employers need to dismiss the unwilling and incapable. The answer is to do things properly.  There is some process to go through but surely if we are taking away someone`s livelihood that is the least we can do?  Principles for tribunals?  Keep the processes simple, avoid technical knockouts, chuck out time wasters, protect the innocent [on both sides], and remember some employers are struggling to survive.       

We need a more effective way of resolving disputes in the workplace without reverting to litigation.  If litigation not to be the answer then do we move towards increased collectivism - people who feel unjustly treated want a resolution, so what course should they take?  A balance needs to be struck. From an employer's perspective, there is resonance with the Beecroft view: employers have increasingly less confidence in the tribunal system.  It takes too long to deal with claims and employers feel that tribunals are inconsistent, with different regions adopting different practice directions.  It is frustrating for employers when Tribunals adopt too narrow a view of employment which serves to reinforce the feeling, perhaps wrongly, that Tribunals favour the applicant.  Combined with the increased legalistic approach, emergence of 'no win, no fee', and cost of defence, it is understandable that suggesting an end to employee rights to claim unfair dismissal arises.  In my view, ending unfair dismissal per se may do more harm than good and is unlikely to create a more productive economy.  I support the adoption of speeding up tribunal decisions from application to judgement; weeding out weak claims through more effective PHR; adopting mediation with 'intent to resolve' - particularly for existing employees; increasing the application period to 24 months; better use of cost orders; adopting consistent Tribunal practice directions (particularly important for multiple site employers); reviewing experience of Tribunals with more focus on ‘practice of employment’; and increasing experience of Tribunal Judges.