Dismissing an employee is a difficult decision for any business owner; however, it's essential to do so in a lawful manner. The process of dismissing an employee must include a fair reason for the dismissal, a fair disciplinary procedure must be carried out, and the employer must act fairly and reasonably.
When dismissing an employee, you must comply with the terms set out in their Employment Contract, paying attention to their notice period to avoid wrongful dismissal claims. Additionally, it's important not to discriminate against the employee unlawfully.
Luckily, by investing in the advice of an experienced employment law solicitor, you can protect yourself from stressful and expensive Employment Tribunal claims.
This article will guide you through the process of dismissing an employee, including what constitutes a fair reason for dismissal, how to dismiss employees during the probation period and for poor performance and the legal considerations to keep in mind.
How do I dismiss an employee lawfully?
To legally dismiss an employee, you must ensure the following:
- There is a fair reason for the dismissal, a fair process is carried out, and you, as the employer, act fairly and reasonably
- You comply with the terms of the Employment Contract, paying particular attention to the notice period, to avoid a wrongful dismissal claim
- You do not unlawfully discriminate against the employee
To comply with employment legislation, you must act reasonably when dismissing an employee and follow a fair process.
To protect yourself from an Employment Tribunal claim, ensure you:
- Establish a fair reason for the dismissal
- Conduct a thorough and fair investigation into the incident/s that led to the decision to dismiss the employee
- Follow the dismissal procedure in your employment contract and, in the case of misconduct or poor performance, the Acas Code of Practice
- Keep the employee informed throughout the process and allow them to bring a representative to any meetings
- Allow the opportunity for the employee to improve their performance or explain their conduct
- Always provide an opportunity to appeal the dismissal decision
- Keep meticulous records of all steps, meetings, and communications
- Comply with the notice period set out in the employment contract
What does dismissal mean?
Dismissal refers to the termination of an employee's employment by the employer. There are three main types of dismissal: unfair dismissal, constructive dismissal, and wrongful dismissal.
What is classed as a ‘fair’ reason for dismissing an employee?
There are five fair reasons for dismissing an employee, namely:
- Capability of developing the work on the required standards
- Conduct
- Redundancy
- Breach of statutory duty or restriction
- Some other substantial reasons (SOSR) (common examples of SOSR include personality clashes, a breakdown in trust and confidence and business restructuration)
If one of these five reasons is not present, then the Employment Tribunal may deem the dismissal unfair and award compensation to the employee.
Can an employee with less than two years’ service claim unfair dismissal?
If you wish to dismiss an employee with less than 2 years of service, you do not need to justify your reasons or follow a fair procedure. However, risks are still involved and it’s essential to take a cautious approach to protect your best interests.
Your employee could bring a claim for wrongful dismissal if you breach the terms of their employment contract, for example, by dismissing them without notice or pay instead of notice.
There are also around 60 different grounds where an employee could claim automatic unfair dismissal even if they have worked for you for less than two years, including the dismissal based on a protected characteristic.
Examples include being dismissed concerning pregnancy, maternity or sexual orientation, TUPE transfers, taking action over a health and safety matter and making a protected disclosure (whistleblowing). Employees with less than two years of service can also bring a discrimination claim under the Equality Act 2010.
How to terminate an employee during the probation period?
If the employee has been employed for one month or more, Acas states that you must provide a week’s notice even if they are on probation.
Although there is no requirement to give a week’s information for employees who have worked for less than one month, it is still best practice to do so.
It’s also best to confirm the dismissal in writing and explain why you are terminating the employment relationship.
How do I dismiss an employee for poor performance?
You can dismiss an employee for poor performance; however, this must be done fairly. You should follow the Acas Code of Practice on Disciplinary and Grievance Procedures to protect your best interests.
If you don’t, the Employment Tribunal can consider this when making a compensation award for unfair dismissal.
Get legal assistance from LawBite
The dismissal process can be challenging. It’s important, however, for the sake of your brand’s reputation and your other employees, that you follow a fair procedure when dismissing someone and always act professionally.
Taking legal advice from an employment law solicitor will ensure you get through this challenging time with your reputation and peace of mind intact during this formal procedure.
To find out how our expert lawyers can support your business with all employment legal matters, book a free 15 minute consultation or call us on 020 3808 8314.
