Guidance through dismissals

Unfortunately, an employment relationship does not always pan out the way that you might have originally hoped, and you have come to the difficult decision that the most appropriate course of action is to part ways through the termination of employment. It's crucial for employers to understand the options available so that employees are dismissed in the most appropriate way for your business, taking into account both legal and commercial factors.

Why might I dismiss an employee?

If an employee is no longer capable of performing their role, the most appropriate choice may be the termination of their employment. However, if an employer fails to follow an appropriate performance management process there could be the risk of an unfair dismissal claim. Additionally, if their performance has been impacted by a disability it’s crucial that you take this into account before taking action, otherwise, you run the risk of a disability discrimination claim.

Misconduct or inappropriate behaviour at the workplace, such as dishonesty, theft, harassment, or violence may warrant dismissal. If an employee behaves inappropriately, you may decide that they should no longer stay in your employment. You should however still ensure that a fair and reasonable procedure is followed before dismissal takes place.

If an employer no longer requires the employee's job role due to business restructuring, closure, or a reduction in workforce, employment termination may happen by way of redundancy. Unfortunately, failure to follow the appropriate process when dismissing an employee, or several employees, for the reason of redundancy, can be costly, so it's important to understand your obligations.

Another substantial reason (ASR) is a catch-all category that allows employers to dismiss an employee for a reason not specifically listed under other categories, provided that the reason is substantial and justifies termination. ASR is often invoked in situations where there is a significant business need or other compelling reasons that make it necessary to terminate the employment relationship.

If an employees violates the terms and conditions of their employment or if a failure to meet legal requirements arise, such as an inability to work in the UK or failure to maintain necessary professional qualifications, then dismissal is likely to occur in these circumstances.

How can I dismiss an employee?

It's crucial for employers to follow fair and proper procedures when dismissing an employee to avoid potential legal consequences. Additionally, employers should be aware of and comply with employment laws and regulations, such as those outlined in the Employment Rights Act 1996, the Equality Act 2010, and other relevant legislation.

Begin by reviewing the employment contract to understand the terms and conditions regarding termination, notice periods, and any specific dismissal procedures. You'll also need to identify a valid reason for dismissal and ensure that the reason complies with employment laws.

You should then conduct a fair and thorough investigation into the reason for a potential dismissal, e.g. alleged misconduct or performance issues. This may involve interviews, gathering evidence, and allowing the employee to present their side. For minor issues, consider addressing concerns through informal discussions to provide the employee with an opportunity to improve. If the issue persists, initiate a formal disciplinary procedure. This involves issuing a written notice of the disciplinary meeting, allowing the employee to be accompanied, and providing them with evidence. After the disciplinary meeting, you can decide on appropriate action. This may include a verbal warning, written warning, final written warning, or dismissal, depending on the severity of the issue and the employee's previous conduct.

An employee has the right to appeal a decision and you should provide details on this and have a working procedure that can be followed.

You should keep detailed recorded of the entire process and ensure that dismissal complies with employment laws, anti-discrimination laws and follows the ACAS Code of Practice. Please note, dismissal due to redundancy requires a different process to be followed, which you can read more about here.

How can we help?

Each case of dismissal is unique and the process is likely to vary on individual circumstances. It's crucial to approach dismissals with fairness, transparency, and adherence to legal requirements to mitigate the risk of legal action by the employee. We can advise you on the risks of dismissal and the steps you should take in your dismissal process to mitigate as much risk as possible (including redundancies). If you need help with a dismissal or tightening your disciplinary process - get in touch with the team.

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