Is a formal procedure always best?

Mention of HR frequently elicits eye-rolling, as stereotypes (sometimes fed by real-life experiences) cause a negative reaction. Clearly a tendency to tar with the same brush all members of any particular profession with which we’ve had a negative experience is not uncommon, and certainly not unique to HR.

But one of the things I think contributes to negative impression of what HR is like, is what can amount to an obsession with Following Procedure.

Clearly it is absolutely right (and in some cases, a legal requirement) to have procedures in employment. They are (usually) there for a reason, and can provide useful protection for both employees and employer alike. They can help make sure the employee gets adequate support, has their legal entitlements met, and that fair and reasonable decisions are made about them, and they can help protect an employer when decisions are challenged or received negatively, by providing evidence that a fair procedure was followed to reach a particular outcome.

All very sensible. But one of the things HR should be doing is not only protecting the employer legally by ensuring decisions made are within legal boundaries and taking appropriate steps to reduce or eliminate legal vulnerabilities, but also encouraging employers to do what is right and best for their employees. Where HR often go wrong is by ignoring the latter, or by assuming those things are both the same.

Many of our consultants who work with us come from larger organisations, where there were procedures that were followed for everything, regardless of circumstances.

Clearly in a very large employer, set procedures which are not deviated from are often important. The higher the number of individual managers there are dealing with similar situations across an organisation, the more likely it is that unfairness may creep in, and a consistent approach, whether it is to dismissal, absence management or dealing with performance problems, is key to protecting a business.

But in a smaller organisation, one of the great opportunities available to business owners is the opportunity to take each case entirely individually, which allows greater flexibility in approach, and the option to take individual circumstances into account to a greater degree.

But actually, in large or small organisations alike, following a formal process is not necessarily always a requirement in order to protect the employer from a legal point of view. If that is the case, that then gives the manager/business owner an opportunity to take a decision about what process to follow in order to take whatever step they are considering, whether it is a dismissal or other action.

An example of this is dismissal during the first two years of employment, when employees’ rights are limited. Unless they are being dismissed because of a protected characteristic under the Equality Act 2010 (or there is a risk they may think that is the case), or for one of the other automatically unfair reasons, they will not be able to claim unfair dismissal at this stage.

Therefore, if a decision has been made to dismiss them (commonly for performance reasons), there is no legal vulnerability involved in not following a formal dismissal procedure.

Instead of slavishly following a formal procedure just because it is there, isn’t it in fact better, where there is no legal vulnerability, to consider what actually would be the best thing to do for the employee? A drawn-out procedure, with formal correspondence, hearings, and delays, is not something anyone relishes, and can be a distressing and stressful experience for managers and employees alike. So why do it if it’s not necessary?

In circumstances where a client wishes to dismiss an employee within two years, and where I am satisfied there is no risk the employee could claim the dismissal is automatically unfair, I encourage the client to consider what procedure would make the dismissal easier for the employee. When they stop and consider this, rarely do they think the employee would actually want to go through a formal process. In circumstances where the decision has been made, therefore a formal process is effectively meaningless and pointless, there is no value to either party in a dismissal in dragging the employee through it.

At face2faceHR a principle of pragmatic, realistic and tailored advice is well-established, and is key to our approach to HR, and keeping policies and procedures (both written and in practice) to only what is necessary and appropriate is very much a part of that. So take a beat before following procedure with employees in challenging situations, and just be sure it’s actually the right thing to do.


If you’re interested in talking to us about becoming a partner with face2faceHR, with bags of support, do get in touch.