Dismissal procedure

Firing an employee is far from ideal. It can be expensive, time-consuming, stressful and demotivating, so it’s only natural most employers want to avoid them. But, we understand that sometimes it’s just got to be done, so if you find yourself facing a dismissal situation we’ll be by your side every step of the way.

Nipping it in the bud

Dismissals aren’t a ‘go to’ solution for ironing out employee issues. It’s better for everyone involved – and the morale of those in the background – if you can solve problems before they reach this stage.

So, we’ll help you to try and avoid dismissals by prioritising positive steps – like performance management, reviews, training and employee support programmes.

Out of options

If you’re all out of options and dismissal is your only way out, we’ll be on hand to support you – day and night – through every stage of the process. From managing disciplinaries and grievances to conducting investigations and having difficult conversations, our HR & Employment Law experts will have your back the whole way.

And, if the worst happens and you find yourself in a tribunal, we’ll support you there too. Providing you’ve followed all of our advice, we’ll even cover your legal costs!

What’s unfair dismissal?

Every single employee who has two or more years’ service (one years’ service in NI) has the right to not be unfairly dismissed. A dismissal could be deemed as unfair if
a) the reason for dismissal isn’t deemed reasonable, and
b) you don’t follow a fair process leading up to the dismissal.

Examples of unfair dismissal include:

• Making someone redundant without consultation or due process
• Dismissing for poor performance, without any formal warnings first
• Dismissing someone who’s been off sick for a long time, without getting a medical opinion as to whether they’re fit to return to work
• Dismissing someone ‘on the spot’ when they’ve been accused of stealing
• Refusing to accept an employee who’s due to transfer under TUPE.

In addition, all employees – regardless of length of service – have the right not to be dismissed for certain reasons, and this is called ‘automatically unfair dismissal’. Examples include dismissals on the back of:

• Pregnancy/maternity status or leave
• Parental, paternity or adoption leave
• Pay and working hours
• Time off for jury leave
• Representation – i.e. if an employee acts as a representative for another employee
• Trade union membership
• Raising a complaint to an ombudsman or other body – i.e. whistleblowing.

Dismissing an employee based on any of the above grounds could land you on the wrong side of the law, open you up to unfair dismissal claims and potentially place you in the middle of a costly tribunal case.

What’s constructive dismissal?

Constructive dismissal is when an employee claims they’ve been forced to walk out of their employment.

For a claim for constructive dismissal to stand up, your conduct must be so serious it caused an irretrievable breakdown in trust and confidence that entitles the employee to consider themselves as dismissed. A few examples include:

• Demoting an employee out of the blue and for no reason
• Refusing to pay an employee or failing to pay them on time
• Forcing an employee to accept unreasonable changes to the way in which they work
• Allowing employees to be bullied or harassed
• Advertising an employee’s job while they’re off sick
• Disciplining employees without any evidence or justifiable reason
• Ignoring complaints or grievances.

Employees can also claim constructive dismissal if a series of events have occurred that have led to the relationship breaking down – even if what caused them to walk out seems minor.

Dismissal during probation periods

In theory, dismissing employees who’re in their probation period should be easier. Why? Because employees with less than two years’ service can’t claim for ‘ordinary’ unfair dismissal.

They can, however, still claim for ‘automatically’ unfair dismissals – like whistleblowing, for example – and discrimination.  So, it’s important to make sure you have evidence of the employee’s wrongdoing, and treat them fairly and consistently regardless of how long they’ve been with you.

To ensure you’re acting on the right side of the law, we’d always recommend seeking legal advice before dismissing an employee – whether they’re in their probation period or not. If you’ve got a question, get in touch with our team of experts on 0345 844 1111 or hello@citation.co.uk.

Discriminatory dismissals

Under the Equality Act, dismissing an employee on the grounds of a protected characteristic – like race, religious or political beliefs, sexual orientation, disability, age or pregnancy, instantly leaves you open to claims of an automatically unfair dismissal due to discrimination – regardless of how long the employee’s been with you.

As a result, an employee dismissed unfairly could be awarded £10,000s in compensation, even if they’ve only been with you a week.

This doesn’t mean to say you can’t dismiss an employee who has a protected characteristic, of course, it just means it can’t be the reason for the dismissal. In addition, if an employee has a disability, a dismissal can be unfair if you:

• Haven’t considered reasonable adjustments; or
• Have penalised them for disability-related absence – for example, selecting an employee for redundancy because they have a lot of time off sick due to their disability.

As tribunals can infer that discrimination’s occurred if a dismissal seems hasty, it’s important to have all your ducks in a row and make sure any concerns around performance or conduct have been acted on early, and you treat employees fairly and consistently.

Following a fair disciplinary procedure

Before you can consider dismissing an employee, you must follow a fair disciplinary procedure. Unsure what that looks like? Here are the eight fundamental considerations to follow:

1. Keep written records throughout the process so you can evidence that you’ve followed a fair process.
2. Don’t base your dismissal on discriminatory grounds. This includes an employee’s: age; disability; gender reassignment; marriage or civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
3. Hold your disciplinary meeting as soon as is reasonably possible.
4. Before the disciplinary meeting, make sure you let the employee know – in writing – what the allegation against them is, and make them aware of any evidence against them and possible consequences. As well, of course, as the date, time and venue of the meeting.
5. Make sure you give the employee their right to be accompanied during the disciplinary meeting.
6. In the meeting, let the employee put their case forward, respond to any allegations, ask questions and present their own evidence.
7. Take action appropriate to the allegation on the back of the disciplinary meeting – this could be a verbal warning, final written warning or dismissal.
8. Allow employees to appeal your decision if they think it’s unfair – they have this right regardless of the decision or case, and make sure someone more senior than the person who made the original decision deals with the appeal promptly and impartially.

For an in-depth look at how to dismiss someone – legally, check out our free guide on it here.

Need a hand?

If you need a hand navigating your way through dismissals and disciplinary procedures, we’re here for you. From managing performance and having difficult conversations to gathering evidence and dealing with appeals, we’ll hold your hand every step of the way.

For more information on how we can start supporting your business, get in touch with our HR & Employment Law experts on 0345 844 1111 or hello@citation.co.uk.