22 March 2022

Dismissing an employee fairly

By Anissa Hallworth, director, Hayes + Storr.

The law gives five potentially fair reasons for dismissal, including breach of a statutory duty or restriction and some other substantial reason capable of justifying dismissal. The most commonly used reasons are redundancy, capability and misconduct.

Even if an employee is guilty of misconduct or their job is clearly redundant, an employer still needs to take care when dismissing. An employment tribunal will also decide if the dismissal was fair in all the circumstances.

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.

Why is the procedure so important?

When deciding if it was fair and reasonable to dismiss the employee, employment tribunals examine 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.

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.

When dismissing someone for misconduct or culpable poor performance, employers must follow the Acas code of practice on disciplinary and grievance procedures. If not, the tribunal may increase the employee’s compensation by up to 25%.

A fair process can also protect an employer from the employee resigning and claiming constructive unfair dismissal during the process. Procedural failings such as delays, an inadequate investigation and not giving the employee a clear picture of the allegations against them, can entitle the employee to resign and claim constructive dismissal.

When can an employee bring a claim?

Usually, employees have the right to bring a claim for unfair dismissal once they have two years’ continuous service. However, from the first day of employment, employees are protected from dismissals for certain reasons.

Pitfalls to avoid

Even if an employee has less than two years’ service, and the employer feels they have acted reasonably, some reasons for dismissal are classed as automatically unfair as listed here. Some of these include reasons such as whistleblowing, taking time off for an antenatal appointment or trade union membership. Employees are also protected from a discriminatory dismissal for a reason related to a protected characteristic such as gender, ethnicity or sexual orientation.

If an employee has almost two years’ service, before dismissing, the employer must make sure they take notice periods into account. If they dismiss an employee without giving notice, one week’s statutory minimum notice can be added on to the date of 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 do employers minimise risks?

  • By having up-to-date and suitable procedures that they follow 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.
  • Consider bringing in a solicitor or consultant to carry out parts of the procedure if there are not enough internal resources.

For employment advice, please contact Anissa Hallworth, director and head of employment law at Hayes + Storr on 01263 825959 or email anissa.hallworth@hayes-storr.com.

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.

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