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Operating a One-Strike-and-You’re Out Employment Policy

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Operating a One-Strike-and-You’re Out Employment Policy

Operating a One-Strike-and-You’re Out Employment Policy
November 28
00:20 2017

When it comes to employees’ timekeeping efforts, adherence to procedures and attitude towards customers, some retailers may feel that a one-strike-and-you’re-out policy is the simplest and most effective way of ensuring staff are up to scratch.

Alison Weatherhead looks at the legal ramifications of enforcing such a policy…

In what circumstances might an employer want to operate a one-strike policy?

This kind of approach could be useful for employers who are prepared to have a reasonably high turnover of employees, where induction and training costs are low and where they can recruit easily. In this kind of environment it can be used to force compliance with basic rules, such as timekeeping and conduct, where the employer does not want to motivate employees in other ways.

Can such a policy be legal?

Yes, but only when applied to employees with short service. Ordinary unfair dismissal protection does not kick in until an employee hits two years’ service. Up until this point, an employer can dismiss an employee with less fear of being exposed to an unfair dismissal claim.

However, protections under the Equality Act and whistle blowing legislation applies to all employees, regardless of service, so a blanket policy should not be applied. Importantly, each case must be considered on its own merits in order to ensure that any dismissal would not automatically trigger a claim.

What kind of discrimination claims could be triggered?

Where the one–strike policy applies to absence, this could give rise to a claim relating to disability. This could be the case in relation to performance targets too; if an employee is not as productive as other employees and is dismissed because a target was missed, the employer could face a disability discrimination claim if the reason for the target being missed was the employee’s disability.

There is also a risk that employees are able to make indirect sex discrimination claims (for example, where a woman with childcare responsibilities does not meet attendance standards), or claims based on religion and belief protections (for example, where prayer commitments clash with strict rules about when rest breaks can and cannot be taken).

How should employers go about dismissing an employee?

Even where employees have fewer than two years’ service, it is best to follow a fair process before dismissing an individual. This means that the reason for the dismissal must be one of those set out in the Employment Rights Act, which includes conduct and capability.

Employers should also follow ACAS guidance, which includes carrying out a fair and reasonable investigation, holding an impartial disciplinary hearing, and offering an appeal. In most cases it would not be reasonable to dismiss for the first act of misconduct, unless the conduct fell within gross misconduct and dismissal was justified in the circumstances. Employees should usually be given an opportunity to improve their performance or their conduct.

How enforceable is this type of policy?

A one-strike policy could backfire on employers if they are not careful in its application. Businesses  using this approach should ensure: That the employee in question has fewer than two years’ service; that they have good reason for the dismissal, and that there is no link with a protected characteristic. The dismissal should not be considered a retaliation, where an employee has blown the whistle or exercised their statutory rights.

Once exceptions are made to the one-strike’ policy and employees see it being watered down, this can reduce its effectiveness. Such policies, therefore, work best when employees know they are enforced strictly. However, this can be difficult to achieve and, given the risks of claims, should not be taken lightly.

Alison Weatherhead, is a director in the employment team at Dentons.

www.dentons.com

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Catering Scotland

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