An Employer’s guide to dismissal
Dismissing employees can be an onerous and stressful task and employers can often face various claims if the dismissal is not reasonably justified or they failed to act reasonably in the circumstances.
As an employer, you are obliged to give notice when dismissing employees, save for in limited situations such as gross misconduct.
Reasons you can dismiss an employee
There are a number of reasons which will give rise to a fair dismissal. This includes:
- Ability: if an employee is unable to do their job properly, you may be able to dismiss them provided the correct disciplinary procedure is followed.
- Illness (ability): an employer can dismiss an employee if they have persistent or long-term illness that renders it impossible for them to do their job. As an employer, you should look for ways to support the employee before dismissing them due to illness. If the employee has a disability, then there is a legal duty on the employer to support the employee. Employers are also expected to allow a reasonable amount of time for a member of staff to recover from illness before dismissing them.
- Redundancy: redundancy is a form of dismissal and is considered fair in most cases. However, employers must ensure that a fair reason is used to select employees for redundancy, otherwise employees may have a claim for unfair dismissal.
- Conduct: an employer is able to dismiss an employee if their conduct is considered poor. This type of behaviour could include poor discipline, dishonesty, repeated lateness or absence without good reason and drug and alcohol misuse.
- A statutory reason: an employee can be dismissed if continuing to employ them would break the law. For example, if an employee no longer had the right to reside or work in the UK or if the employee lost their driving licence and this formed part of their role.
- A substantial reason: there is no set list or guidance as to what would constitute a substantial reason for dismissal, but this may cover the employee going to prison or perhaps committing a serious offence.
What constitutes a fair dismissal process?
Whilst many employers may be able to show a fair reason for dismissal, this alone will not be sufficient. Employers must also show that a fair process has been followed. The ACAS code of practice on disciplinary and grievance procedures provides some guidance as to what actions employers should take during the disciplinary process to ensure it is fair. The following should generally be adopted by employers:
- Establish the facts of each case and carry out appropriate investigations.
- Inform the employee of the problem.
- Allow the employee to be accompanied at a disciplinary meeting.
- Decide on appropriate action after the meeting.
- Provide employees with an opportunity to appeal disciplinary action.
It’s advisable to follow this code of practice, as judges at an employment tribunal will consider the code when assessing a case.
Types of Dismissal
There are different types of dismissal that all employers should be aware of in order to avoid any potential claims. These are:
- Unfair dismissal: unfair dismissal arises where an employer does not have a good reason for dismissing an employee or fails to follow the correct disciplinary or dismissal process. There are a number of reasons which will be considered automatically unfair such as whistleblowing or reason related to maternity.
- Constructive dismissal: Constructive dismissal is where an employee is forced to leave employment against their will because of their employer’s conduct. The reason for leaving must be serious and the employee should have left soon after the alleged incident. Common reasons giving rise to constructive dismissal include breach of the employment contract by the employer, failure to pay wages or allowing the employee to be bullied or harassed.
- Summary dismissal: an employee can be dismissed for gross misconduct without an employer having to go through the normal disciplinary procedures. An employer can usually also terminate the employment without given contractual or statutory notice. However, employers should ensure that a full investigation has been carried out before utilising this option to ensure the dismissal is fair.
- Wrongful dismissal: wrongful dismissal occurs where the employer breaches a contractual term of the employee’s contract. For example, when an employee terminates employment without giving notice, or fails to pay in lieu of that notice.