BUSINESSES must consider poor performance from their staff as an opportunity to improve them, not to dismiss them, says a leading employment lawyer. Advocate Jessica Roland said that the law was designed to cover not only the dismissal decision, but also the process.

‘Employment laws are about redressing the perceived imbalance between employer and employee and this was specifically referred to in the 2004 Billet d’Etat introducing these amendments,’ she said.

‘The onus lies very much with the employer to ensure that they have scrupulously taken the correct steps to ensure a fair and procedurally correct dismissal.

‘In a buoyant economy such as that of Guernsey, the best way for employers to look at the protection which the law gives employees is to ensure that employers try to get the very best out of employees in a structured way, so that if all attempts at improving performance fail, the employer has the material and records available to dismiss someone fairly.

‘Our experience is that generally employers are more able to deal with one act of gross misconduct or incompetence than a steady stream of misdemeanours. However, the law expects that the employee is given the opportunity to rectify his behaviour or to receive training to improve his skills.’

With tribunal awards now potentially realising six months’ pay, Advocate Roland said that should be an incentive to employers to ‘ensure that their managers manage and that their supervisors supervise’.

The process of dismissal also extended to conversations about settlement and agreements compromising employee claims, added Advocate Roland, speaking at the employment seminar staged by law firm Ozannes.

‘Tribunals and courts have been paternalistic in their protection of employees from unscrupulous employers pressurising employees into agreements which are unfair to them.’

Advocate Roland said that the amended local law insisted on compromise agreements containing prescribed information, including an obligation for legal advice on the agreement. Without that, a tribunal can set the agreement aside.

‘An employer will be at risk of any purported settlement being set aside if it attempts to circumvent this protection,’ she said.