Not able to do the job?

Recently a client of mine came to me saying they had just received a solicitor’s letter claiming that someone they had hired and dismissed within two months was dismissed because he suffered from a disability. They wanted to reach a settlement. The truth was that he was dismissed because he had claimed at interview that he had a certain set of skills, and it had become abundantly clear that either he had lied at the interview or he had not appreciated what they were asking for (it was a technical job).
The problem was they hadn’t told him that. They just told him he wasn’t up to the job and told him to clear his desk. Unfortunately, there was no record of this conversation, and unknown to the management there had been a bout of office “banter” a couple of days before which the employee felt was having a go at people with his particular disability.
A perfect storm really and I have to say the cost of settling was much less than the cost and disruption that would have resulted if a claim had been made. So that’s what they did. So why when they had a perfectly good reason to let him go, did they not fight the case?
They didn’t know about the office “banter” and they also didn’t know about the individual’s disability (although it could have been argued that they should have realised). The point is from the ex-employee’s point of view he had not been told what he was doing wrong and just a couple of days before he was sacked he had been upset by some comments in the office which he felt referred to him. So, he had put two and two together and come to the conclusion that the dismissal and the comments were related. Actually, if you put yourself in his position it was not an unreasonable conclusion to come to.
The legal situation was also pretty worrying. If someone has less than two years’ service you are allowed to dismiss them for any reason you like provided it is not one of the “protected” reasons. For example making a health and safety complaint, asking for a payslip, having a protected characteristic under the Equalities act (sex, race, marital status, sexuality, religion, disability etc.), in short being dismissed in contravention of, or for asserting a statutory right.
The other legal point is that if someone makes a claim under Equalities legislation, it is for the employer to show that the employee had not been discriminated against. If they cannot then the tribunal is entitled to find in the employee’s favour. In this case our assessment, based on the facts, was that the employer would lose the case if it came to a hearing. Also the cost of settling was less than the cost of defending the case not to mention the disruption that would have been caused to a small company.
The message here is simple, in most cases even if someone joins you and quickly shows themselves unable to do the job you have employed them to do, they should always know what they are doing wrong and be given time to get it right before they are dismissed. You should also keep a record of them being told. It’s actually common sense really, but it can get lost in a busy workplace.
It also would have helped if they had called us before dismissing this employee!
By the way the picture is just a nice scene to help you feel good, it’s also where I wrote this blog so I can feel a little bit smug!