Do small businesses have to have an official diciplinary procedure?

[Fourcatsonthebed]

The daughter of a friend of mine works for her aunt and uncle in a small family business. Well to cut a very long story short my friend and her sister (ie the aunt) have fallen out big time. During a very heated conversation last week, the aunt has said (shouted) that the daughter is now also creating an atmosphere at work and "she had better watch out as she might need to get a new job".
Now my friends DD has worked their for some time and shes a really sensible girl who takes her job seriously. She doesnt muck about and is very professional.
Unfortunatly the DD overheard this being shouted and is of course very upset and feeling insecure in her work now. I didnt think you could just be fired unless you had committed gross misconduct. She has never seen a dismissal policy and I wondered if small businesses didnt need to have one. Can anyone advise?

I would think they do, but im no expert. But i do remember reading about a local pub which was a small family run business who sacked one of the waitresses by text, and she took them to a tribunal and won. So I'd imagine there will be some sort of framwork in place. Hopefully someone with more knowledge will come along and give you some answers.

I think they have just changed the tribunal rules for small businesses so be careful. I can't remember whether it was that they reduced access to legal aid or whether it was just that small businesses didn't have to comply with certain rules.

Small businesses have to follow the same employment law as any other company.

There are currently proposals to allow "micro-organisations" (those with less than 10 employees) to introduce "no fault dismissals" after any period of time where a set amount of compensation is paid to the dismissed employee - but it's only a proposal.

There was a recent change to unfair dismissal rules, where employees employed on or after 6th April 2012 will have to have two years continuous service to make a claim for unfair dismissal which was previously only one year (and still is for everyone who started pre 6th April). There is no legal aid for employment tribunals (with the exception of a very, very tiny amount in Scotland but you must have a very low income and very good case).

As Lizcat says all employment law applies to all employees regardless of size of employer so they cannot just dismiss her because her mum and her employer have fallen out. Employees can be dismissed because there is no work (redundancy) or because their performance is not of an acceptable standard (capability or conduct reasons). There are longer processes if employees have enough continuous service (see previous note about unfair dismissal) but to answer the OP, employers must as a minimum abide by the ACAS code of conduct for grievance and disciplinary if they are to avoid running into problems at tribunal because failure to follow the process can lead to an uplift of up to 25% to any award - assuming an award would be made.

So, in this particular case the key issues are the employee's...

1. Length of service
2. Behaviour and competency at work
3. There being work to be done

I would suggest her mother and aunt try to make up asap for the sake of everyone.

And I have just checked, there is no legal aid for employment tribunals, and limited legal aid in Scotland.

Thanks guys for the information! Unfortunatly there is little hope of them making it up... Its been building up for quite a while now and my friend is at the point of having to break off all family communication due to their intimidating behaviour. It just isnt fair to take it out her daughter!

Yes.

They have to send a letter inviting employee to disciplinary hearing and tell them they have the right to be accompanied and warn them they may be dismissed; they have to hold a disciplinary hearing and then give them a right appeal.

Gross misconduct simply means you can dismiss someone and ask them to leave right away without working (or paying them for) their notice. You still need to do the above though. The employer would also have to show that is had a reasonable belief based on a fair investigation that the employee did the act they were accused of. There are also arguments over what "acts" can amount to gross misconduct (usually things like stealing, turning up drunk to work, violence at work etc).

With small companies they can sometimes get away with small procedural "breaches" such as having the same person hear the appeal as made the dismissal but ideally they would get someone in from outside and would have to explain to a tribunal why that wasnt possible.

Also just because a dismissal is "procedurally" unfair doesnt necessarily mean the employee will get compensation for unfair dismissal because the employer can argue that even if the procedure had been totally fair they would still have dismissed the employee and therefore the compensation should be reduced (often to nothing). Therefore it isn't worth suing.

What I would advise however is she writes down a note of what was said and dates it and signs it. This would be very useful in the future if she was dismissed because it shows that any disciplinary process was predetermined and a sham process. In fact I would tell her to start a diary and write down anything like this.

She needs to have been employed for at least year at the date her employments ends to claim unfair dismissal.

She also must definitely be an "employee".

Hope all that helps!!

Ahhhhh. Thanks that really helps. I have already suggested that she keeps a diary but hadnt considered that this could then show how they were already working to get her out! Not sure she even has anything to put in it yet apart from hearing the comment to her Mum, but we will make sure that is the first comment.