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When is it fair to dismiss an employee?

4th December 2018

When is it fair to dismiss an employee?

4th December 2018

There comes a time when there is a need to dismiss an employee, however it is necessary to establish the reason for the dismissal and to ensure it is carried out in a fair and proper manner.

There are 5 main reasons when a dismissal is fair.

Conduct / Misconduct

An employee is required to conduct themselves is a professional and proper manner. Should they cease to do so, an employer is entitled to bring the conduct to the employee’s attention. Minor conduct issues include:

  • poor timekeeping;
  • incorrect uniform worn; or
  • damage to company property.

Dealing with minor issues can be done through many channels such an informal or formal meetings, written warnings 1st  & 2nd  or eventually to a final written warning. Should  the conduct of the employee continue, despite meetings or warning, this can eventually lead to dismissal on the grounds of misconduct.

If the conduct of the employee is a very serious breach, such as violence, theft or discriminatory behaviour this can be regarded as gross misconduct and can lead to the employee being summarily dismissed, this can be with or without notice. HOWEVER, employers have a duty to satisfactorily investigate the matter to ensure that the allegation(s) have "reasonable grounds for belief". They must also be sure to follow the ACAS code, plus any contractual standards expected of them during the dismissal process.

Capability / Performance

This reason deals with 2 different scenarios, the first is the employee is unable to perform their job role because of health reasons and therefore not capable of continuing in the job. It also relates to poor performance in the job role to which they are employed.

Managing the process for dismissal on these grounds needs to be dealt with correctly. ACAS provides a clear step by step procedure of dealing with these types of dismissal.

The key with ensuring the dismissal is fair is to allow the employee time to rectify their performance and or time to recover and monitor a personal health problem.

Redundancy

There are many reasons when a business needs to reduce the number of employees, it can be due to change of location, work load, change of work type or in some circumstances as the business is closing down.

Dismissing an employee on the ground of redundancy can only take place after the appropriate consultation process has taken place. This process takes a minimum of 2 weeks but usually take more like 4-6 weeks.

Statutory illegality or breach of a statutory restriction

This reason is rarely used but in some circumstances it is necessary otherwise continuing to employ someone would mean that you are breaking the law.

For example a taxi driver who has lost their licence and there is no alternative work, or if an employee visa to work in the UK has expired.

You must however still follow the necessary dismissal process for it to be fair.

Some other substantial reason

This category gives an employer a reason to dismiss an employee through the appropriate process that does not necessarily fit into one of the other categories.

Examples of a fair reason to dismiss an employee using this reason are significant conflict of interest or an employee does not agree to reasonable changes to their employment terms and conditions.

As this category is a catch-all,  its very important for an employer to have a very clear reason to dismiss. An employer’s approach must be fair and reasonable and the correct procedure to explore all other avenues has been extinguished before proceeding with a dismissal.

 

There are ways to dismiss an employee using a fair reason but the key to remaining fair is for an employer to follow the correct procedure.