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Dismissing an employee is a serious act. It has extensive consequences for both you and your employee. Not only will your employee be left without a job, but you may also find yourself short of resources. Worse still, if you do not dismiss an employee fairly, your employee may raise a claim in an employment tribunal. If you are an employer faced with the difficult task of needing to dismiss an employee, you should ask yourself some critical questions. This article will detail some of the key considerations you should think about before dismissing an employee.
What is Dismissal?
If you decide to end your employee’s employment contract, this is known as dismissal. When you decide to dismiss an employee, in addition to having a valid reason, you must ensure you are fair and reasonable. This will require you to follow a dismissal procedure. You should note that this still applies during the COVID-19 pandemic.
Key Considerations
When you consider dismissing an employee, there are some key questions you should ask.
1. Is Dismissal Necessary?
When you dismiss an employee, the first consideration is whether or not dismissal is actually necessary. Next, you may want to consider if there is an alternative to rectify the issues. For example, coaching or counselling for performance or conduct issues.
2. What Do I Need To Investigate?
Before deciding that dismissing your employee is necessary, you should investigate the circumstances that may lead to their dismissal. For example, where dismissal may occur due to misconduct, you must establish proof of any allegation through an investigation. This should result in a reasonable belief that the allegation is accurate and that dismissal is a reasonable reaction.
3. Is There a Valid Reason for Dismissal?
When dismissing an employee, you should consider whether or not you have a valid reason for doing so. A valid reason could be because your employee:
- participated in poor conduct;
- could not carry out the work;
- had been considered for redundancy; or
- was legally unable to do the job, such as if they have lost their driving licence and the job requires them to drive.
Furthermore, other valid situations, such as your employee’s fixed-term contract ending or your client refusing to work with them, are known legally as ‘some other substantial reason’.
Examples of reasons for dismissal which are not fair could be where your employee:
- asks to work flexibly;
- requests their legal right such as the National Minimum Wage; or
- has disclosed wrongdoing in the workplace.
4. Is This Dismissal Fair?
To ensure that you dismiss your employee fairly, you should consider a full and fair procedure. The procedure should reflect the Acas Code of Practice on disciplinary and grievance procedures and any policies you may have in your workplace regarding dismissal.
Your decision should be:
- balanced;
- consistent; and
- fair.
5. What Are My Reasons For Dismissal?
When you let your employee know you have decided to dismiss them and the reason for doing so, it is good practice to put this in writing. Furthermore, where your employee is pregnant or on maternity leave, the law requires you to put the reason for dismissal in writing.
Additionally, where your employees are legally considered an employee and have worked for you as an employee for at least two years, they have a legal right to ask for the reason in writing.
When stating your reasons for dismissal, you must let your employee know:
- the reason for dismissal;
- the date of dismissal;
- what any notice period may be; and
- that they have a right to appeal the decision.
6. Is Notice Required?
When you dismiss your employees, you are required to give them a paid notice period. However, where dismissal is due to gross misconduct, you do not have to give them a notice period or pay. Gross misconduct is when your employee has carried out a serious act or action that could have serious consequences. However, when dismissed due to gross misconduct, you must still follow a fair procedure leading up to your decision.
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Dismissal Due to Long-Term Illness
While it is possible to dismiss someone due to long-term illness, it should be a last resort. If someone has been off work due to long-term sickness, you should make reasonable adjustments to help them return.
If you have done this, dismissal due to long-term illness may be fair. However, this is only the case where the employee cannot carry out their work. In this case, it may have a significant impact on your business. However, you must still investigate the situation.
Appeals
When dismissing an employee, you must allow them to appeal your decision and explain to them how they may do so. You must do this carefully because if after considering their appeal they are not satisfied, your employee can then bring a claim with an employment tribunal. However, this is where they are legally considered an employee and have worked for you for at least two years.
Avoiding Wrongful Dismissal
When deciding to dismiss your employee, you must ensure that in doing so, you are not breaking a term within their employment contract. A typical example of when this might apply is dismissing your employee without abiding by the notice period and pay you have detailed in their employment contract.
If so, this may be wrongful dismissal, and the employee could make a claim at an employment tribunal. However, you should note that for your employee to claim wrongful dismissal, they do not need to have worked for you for a set period.
Key Takeaways
It is good practice for employers to try to find alternatives to dismissal. However, when you need to dismiss your employees, you need to be sure that it is the right decision, you have a valid reason and that you are following the correct procedures. You need to investigate before dismissing an employee and consider making changes to avoid dismissal. Regardless of the reason for dismissal, you must dismiss your employee fairly to avoid repercussions such as employment tribunals.
If you need help with understanding the key considerations when dismissing an employee in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
An employer cannot dismiss their employees for any reason they choose. The law must consider the reason valid, such as poor conduct, rather than an invalid one such as asking to work flexibly.
An employer only needs to provide their employee with the reason for dismissal in writing when the employee is pregnant or on maternity leave. However, it is good practice to provide the reason for dismissal in writing regardless as it provides clarity for all. Also, your employee can legally request for the reason to be stated in writing where the law considers them an employee and where they have worked for you for at least two years.
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