Dismissing staff can be very stressful and difficult emotionally, there are also many myths and rumours about what you can and can’t do. This section brings some clarity that will hopefully minimise the stress.
What is considered a fair dismissal?
Reasons for dismissal that are more likely to be considered fair are:
Dismissal on the grounds of conduct or capability
Lacking appropriate qualifications for the job
Contravention of or limitations imposed by law
Some other substantial reason not accounted for in the above categories that may justify the dismissal.
What is considered an unfair dismissal?
Reasons for dismissal that will be considered unfair and therefore open you to risk of a claim against your business are:
Dismissed for exercising a statutory right
All reasons relating to pregnancy and maternity
Acting as an employee or trade union representative
Being a member of a trade union.
Can anyone claim unfair dismissal?
No they can’t.
Employees must have at least two years employment with you before they can make a claim.
But there are some exceptions to the rule. If the claim is made on the grounds of discrimination under the Equality Act 2010 or discrimination for exercising certain statutory rights then they do not need the 2 year qualifying period to take a claim.
Freelancers, independent contractors and self-employed are not entitled to bring a claim.
Employment tribunals will take into consideration whether an employer has followed the ACAS code of practice. Whilst it’s not legally enforceable it will be difficult to argue why you haven’t followed and won’t earn you any favours with the Judge if you don’t.
If you want to dismiss an employee it is usual to follow a formal disciplinary process first if the reason for dismissal is poor conduct. If you are coming to the end of a fixed term contract then you need to ensure you issue notice of the termination of employment in accordance with the contractual terms and agreement. Let’s look at the more complex process of dismissing staff for poor performance.
Your employee has the right to be accompanied by a companion to the hearing and they should be made fully aware of the evidence from the investigation and why they are being invited. You need to give them reasonable notice of the meeting so that they can prepare properly for it. Do not just spring it on them last minute. If their companion is not available, you will need to rearrange to another date.
You can only dismiss someone once you have gone through a fair process. You still need to give them notice. Although if a risk to the business you can suspend them from work on full pay during the notice period. In extreme circumstances you can carry out a summary dismissal where you do not have to give notice and can – following a disciplinary hearing instantly dismiss your employee. However, you need to show you have gone through due process first and the offence is sufficiently serious (Gross misconduct) to warrant it.
It’s important to put the decision in writing to the employee and offer them the right to appeal.
If they already have a warning on file for the same offence, you can issue the next level of warning upwards. It usually goes Verbal, First Written, Final Written, Dismissal. However, if the existing warning on their file is for a completely different and unrelated offence then you need to treat them separately.
The seriousness of the misconduct should determine the level of the warning you issue and whether this is out of character or a first offence. In very extreme circumstances where the behaviour of the employee warrants it you can skip a level or two. And in the cases of gross misconduct you can if appropriate head straight to dismissal.
Employees have the right to be accompanied to the appeal hearing by a companion.
Can I recruit a replacement before I formally dismiss my employee?
The simple answer is no, you would jeopardise the objectivity and fairness of the dismissal process if you recruit somebody before a decision has been made. You also leave yourself wide open to a claim against your business.