Letting a member of staff go is not a pleasant part of running a business. It can be expensive, time-consuming and stressful – it’s only natural that most employers want to avoid it. In much the same way as you would only resort to formal disciplinary action based on the ACAS code of practice if informal methods haven’t worked, so dismissal should be an absolute last resort.
If you find yourself facing a dismissal procedure we’ll be by your side every step of the way. We’ll help you to try and avoid dismissals in the first place. Our experts are on hand 24/7 to help prioritise positive steps – like performance management, reviews, training and employee support programmes.
If the worst happens and you find yourself facing a tribunal claim, we’ll support you there too, thanks to our dedicated employment tribunals team. Plus, providing you’ve followed all of our advice, we’ll even cover your legal costs.
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:
For an in-depth look at how to dismiss someone legally, check out our free guide on it here.
Every employee with two or more years’ service (or one years’ service in Northern Ireland) has the right to not be unfairly dismissed. A dismissal could be deemed unfair if:
a)the reason for dismissal isn’t deemed reasonable
b)you don’t follow a fair process leading up to the dismissal
Examples of unfair dismissal include:
Additionally, all employees – regardless of their length of service – have the right not to be dismissed for certain reasons. This is called ‘automatically unfair dismissal’. Examples include dismissals related to:
Dismissing an employee based on any of the above grounds could open you up to unfair dismissal claims and potentially place you in the middle of a costly tribunal case.
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:
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.
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 still claim for ‘automatically unfair dismissals’ – e.g. whistleblowing – and discrimination. 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.
Under the Equality Act 2010, 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 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 tens of thousands of pounds in compensation, even if they’ve only been with you a week.
This doesn’t mean 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:
As employment tribunals can infer that discrimination has occurred if a dismissal seems hasty, it’s important to make sure any concerns around performance or conduct have been acted on early, due process has been followed and you treat employees fairly and consistently.
From managing employment contracts to negotiating notice periods, our team of experts can be by your side 24/7 to help you navigate the complexities of HR & Employment Law.
You’ll get 24/7, 365 days a year access to our advice line – so whatever your issue, there’s someone on the other end of a phone call to help you and your business out.
You’ll also receive access to our online platform, Atlas. That way you can store, amend and distribute contracts – and much more – all from one, cloud-based platform.
Plus, we’ll make sure to keep you updated as soon as any legislation is updated or if your responsibilities change.
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