Dismissal Procedure Support Guide

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.

What is a fair dismissal procedure in the UK?

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 hearing, 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. Also inform them of 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.

What is unfair dismissal?

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:

• 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

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:

• 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 bodies – i.e. whistleblowing

What does constructive dismissal mean?

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 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 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.

Discriminatory dismissals

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:

• Haven’t considered reasonable adjustments
• 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 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.

How can Citation help?

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.

To get the full picture on how much we can help your business with, just fill in your details in the form opposite and we’ll be in touch!