Dismissing an employee fairly: a refresher

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

As Elizabeth Bartle, employment law expert with Ingram Winter Green in London explains, 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. Elizabeth highlights pitfalls to avoid and ways businesses can minimise risks.

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 you 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 cannot bring a claim for unfair dismissal until they have been employed for two years. However, in certain circumstances employees can bring unfair dismissal claims from the beginning of their employment. There are many reasons why an employee may be able to bring an unfair dismissal claim from “day one” (too many to list here) but they include reasons such as whistleblowing, taking time off for an antenatal appointment or where the dismissal was discriminatory. Accordingly, it is rarely safe to assume that an employee cannot bring an unfair dismissal claim simply because they have been employed less than two years.

Pitfalls to avoid

Even if the dismissal does not fall into one of the categories allowing the employee to be bring an unfair dismissal claim before they have been employed two years, an employer should be mindful of how the two year period is calculated.  If the employee has almost two years’ service, before dismissing, make sure that you take notice periods into account. If an employee works their notice, the notice period could take them over the two year period. If you dismiss the employee without giving any notice, one week’s statutory minimum notice can be added on to the date of dismissal. This may be enough to give them protection from unfair 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 can I minimise risks?

  • Ensure you have up-to-date and suitable procedures and that you follow these 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, so that they are ‘untainted’.
  • Consider bringing in a solicitor or consultant to carry out parts of the procedure, if there are not enough internal resources.
  • Be consistent in your decisions.

Our employment law solicitors can advise you on minimising risks and guide you through the dismissal process. Please contact Elizabeth Bartle in the employment law team on 020 7845 7443 or email elizabethbartle@iwg.co.uk.