In order to dismiss someone fairly, you must have a potentially fair reason for dismissal. There are 5 such reasons prescribed in law which are:

  • Capability or qualifications
  • Conduct
  • Redundancy
  • Breach of a statutory duty or restriction
  • Some other substantial reasons (SOSR).

However, even if your employee is guilty of misconduct or their job is clearly redundant, you still need to take care when dismissing. An employment tribunal will also decide if the dismissal was fair in all the circumstances.

As Kerry Curd, a Partner in the employment team with WBW Solicitors explains, it is crucial that employers follow the right steps to ensure dismissals are fair or the employee could bring a successful claim for unfair dismissal. [Name of solicitor] highlights pitfalls to avoid and ways businesses can minimise risks.

Why is the procedure so important?

Employment tribunals not only examine the reasons for dismissal, but also the procedure followed by the employer. If the procedure is unfair, the dismissal is almost always unfair. What makes a procedure fair will vary depending on the reason for the dismissal.

When dismissing someone for misconduct or culpable poor performance, employers must follow the ACAS code of practice on disciplinary and grievance procedures. This will include:

  • properly investigating the issues,
  • informing the employee of the issues in writing,
  • conducting a disciplinary hearing or meeting with the employee,
  • and informing the employee of the decision in writing and include a right of appeal.

If not, the tribunal may increase the employee’s compensation by up to 25%.

If the tribunal finds that the dismissal was unfair, the tribunal may order that the employee should be allowed to come back to work. More commonly, tribunals award compensation to the employee.

A fair process can also protect you from the employee resigning and claiming constructive unfair dismissal during the processFailure to follow a fair procedure could cause the affected employee to resign, leaving employers exposed to constructive dismissal claims.  The following examples are common procedural failures can make, resulting in such claims:

  • Delays;
  • an inadequate investigation; and
  • not giving the employee a clear picture of the allegations against them.

Pitfalls to avoid

Usually, employees have the right to bring a claim for unfair dismissal once they have two years’ continuous service. However, all employees, regardless of their length of service, are protected from dismissal reasons that would constitute automatic unfair dismissal. These reasons are too numerous to list here, but they include reasons such as whistleblowing, taking time off for an antenatal appointment or trade union membership. All employees also have protection from a discriminatory dismissal for a reason related to a protected characteristic such as gender, ethnicity, sexual orientation or disability.

If the employee has almost two years’ service, before dismissing, make sure that you take notice periods into account. If you dismiss the employee without giving notice, one week’s statutory minimum notice can be added on to the date of dismissal. This may be enough to give them protection from unfair dismissal.

Employers are sometimes caught out where they assume an individual is a casual worker or contractor who does not have the right to bring a claim for unfair dismissal. After ending the working relationship with the individual, they may claim that they were in fact an employee and bring a claim.

How can I minimise risks?

  • Ensure you have up-to-date and suitable procedures and that you follow these consistently.
  • Before ending the relationship with a casual worker or an employee with less than two years’ service, take advice to check it is safe to do so.
  • At the start of a procedure, allocate senior staff to deal with the different levels of the procedure. Try to ensure that the appeal is heard by someone senior to the person who dismissed the employee and that they have not been previously involved, so that they are ‘untainted’.
  • Consider bringing in a solicitor or consultant to carry out parts of the procedure, if there are not enough internal resources.
  • Be consistent in your decisions.

Our employment law solicitors can advise you on minimising risks and guide you through the dismissal process. Please contact Kerry Curd in the employment team on 01626 202406 or email kerrycurd@wbw.co.uk.

WBW has offices in Torquay, Paignton, Newton Abbot, Exeter, Bovey Tracey,  Exmouth,  Honiton,  Sidmouth,  Launceston,  Axminster, Chard and Seaton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.