What Should I Consider Before Dismissing an Employee in England?

As an employer, there will likely be times when you feel the need to dismiss your employees. Dismissal is when you end your employee’s employment contract, meaning they no longer work for you. However, it is essential that when you dismiss your employees, you do so lawfully and fairly. If you fail to, you could face claims at an employment tribunal for unfair dismissal or wrongful dismissal, or even discrimination. Therefore, before deciding to dismiss an employee, you must consider the situation carefully. This article will explain the key points to consider before dismissing an employee. 

Do You Have a Fair Reason for Dismissal?

Before you decide to dismiss an employee, you must ensure that you have a potentially fair reason for dismissal. There are five potentially fair reasons why an employer may dismiss an employee, including:

• poor conduct;
• poor capability, such as your employee’s performance, health or qualifications for the role;
• redundancy due to your need for fewer employees; 
• illegality, which means that employing your employee is against the law such as due to an employee’s immigration status; and
• ‘some other substantial reason’ (SOSR) which could be, for example, because your employee will not agree to their change of terms and conditions of employment.

If you do not use one of the five fair reasons to dismiss, you could face a claim for unfair dismissal where your employee has worked for you for two years continuously. However, regardless of the amount of time they have worked for you, an employee can still bring a dismissal claim against you due to their:

• pregnancy status;
• whistleblowing action; or
• assertion of a statutory right.

Have You Followed a Fair Procedure?

While you may have a potentially fair reason for dismissing your employee, you must have followed an appropriate fair procedure when considering dismissal. To ensure that you have done so, you must follow the Acas Code of Practice on Disciplinary and Grievance Procedures. This is because an employment tribunal will consider the Acas Code during an unfair dismissal claim. If you have not followed the Acas Code, an employment tribunal will increase compensation awarded to your employee by 25%.

A fair and appropriate procedure includes:

• giving your employee details about the reason why you wish to dismiss them;
• allowing a reasonable period for them to consider the reasons;
• creating a chance for the employee to respond to your reasons which should be a hearing or a meeting before you decide to dismiss; and
• allowing a right of appeal for your dismissal decision.

Have You Acted Reasonably?

If you have a potentially fair reason for dismissal and have followed a fair and appropriate procedure before dismissing, you must also ensure you have acted reasonably. There is no legal definition of ‘reasonableness’. Consequently, what is reasonable depends on the circumstances of dismissal.  

To consider whether you have acted reasonably, an employment tribunal will look at whether you:

• genuinely believe the reason you gave was fair;
• conducted proper investigations;
• followed a procedure that you should have done;
• notified your employee that you may dismiss them and heard their side of the story;
• allowed your employees to be accompanied in their disciplinary meeting; and
• you provided a chance for your employee to appeal.

Have You Complied With the Employment Contract?

When considering whether or not you have complied with your employee’s employment contract, you need to consider, for example, the notice period. If you decide to dismiss your employee, you should normally do so according to their notice period as set out in their employment contract. Some contracts require you to comply with payment instead of notice. Regardless of what is stated in the employment contract, the notice period should be consistent with the minimum legal requirement which depends on:

• how long they have worked for you; and 
• the expiry of your employee’s fixed-term contract. 

There are occasions where you do not need to give notice for the dismissal of your employee, and this is where gross conduct has occurred or a serious breach of their employment contract. Dismissal, in this instance, is considered summary dismissal. 

If you fail to consider whether you have complied with the employment contract before dismissing your employee, such as not giving the correct notice, your employee could claim wrongful dismissal.

Have You Ensured You Have Not Unlawfully Discriminated?

Before dismissing an employee, the final point you must consider is that you have not discriminated against them based on the nine protected characteristics. These are:

• race;
• sex;
• disability;
• religion;
• sexual orientation;
• gender reassignment;
• age;
• being married; or
• being in a civil partnership.

You must not discriminate:

• as the reason for dismissal;
• because they have made a complaint about discrimination; or
• through victimisation, which is where they have supported another person with a discrimination complaint.

Key Takeaways

If you find yourself in a situation where you need to dismiss your employees, you must ensure that you do so lawfully and fairly to avoid a claim for either unfair dismissal or wrongful dismissal. Facing a claim for either could be costly in terms of time, money and reputation. You should consider some key points to ensure that you have acted reasonably and lawfully. For example, ensuring you have a potentially fair reason for dismissal such as a conduct issue or the need for redundancy and whether you have acted reasonably where you should consider what an employment tribunal may consider. An employment tribunal may consider whether you have allowed your employee a chance to be accompanied to the disciplinary meeting and allowed them to appeal.

If you need help understanding how to dismiss an employee in England, 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.

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