When Can an Employer Dismiss Their Staff in England

As an employer, there will likely be times when you will need to dismiss a staff member. However, when you dismiss staff, you must ensure that it is fair. Otherwise, you could face a claim for unfair or wrongful dismissal. To ensure the dismissal is fair, you should consider the fairness of your:

• reason for the dismissal; and 
• behaviour and actions throughout the dismissal process. 

To help you understand what is fair during dismissal proceedings, this article explains when you can dismiss your staff in England. 

What Reasons Can You Dismiss Your Staff?

You can only dismiss your staff if you have a fair reason. A fair reason for dismissing your staff may be due to:

• their poor conduct;
• their capability or performance in the role;
• business restructuring that results in redundancy;
• a legal reason why they can no longer carry out their role, such as losing their driver’s licence; or
• another substantial reason. 

Misconduct 

When misconduct is your reason for dismissal, the issue could be continuous lateness for work or unauthorised absence. However, misconduct can also amount to serious or gross misconduct. Gross misconduct could be, for example, physical violence or gross negligence.

When misconduct is due to a worker’s physical or mental capabilities, you should only dismiss them as a last resort. That is to say, you must help your employees in every possible way to do their job before you dismiss them. Otherwise, the dismissal could be unfair. 

When is Dismissal Wrongful?

Wrongful dismissal is different from unfair dismissal. It is where you dismiss a staff member, and the dismissal breaks a term in your employee’s employment contract. For example, if you dismiss an employee without the correct notice period according to the employment contract.

You must put the reasons for the dismissal in writing where your employee is:

• on maternity or paternity leave; or
• has legal employment status and has been employed by you for at least two years. 

If these employees request reasons, you must give them your reason in writing within 14 days of their request. 

How Does an Employer Correctly Dismiss Their Staff?

As well as having a fair reason for the dismissal, you must act reasonably throughout the dismissal process. While there is no set procedure you must follow, you should follow the Acas Code of Practice on disciplinary and grievance procedures where the reasons for dismissal are due to conduct or capability. 

If you fail to act reasonably and follow a fair procedure, the dismissal is not fair regardless of your reasons for the dismissal. You should note that the law does not define ‘reasonableness’. However, there are points an employment tribunal considers when deciding if an employer has acted reasonably. This includes whether the employr:

• honestly felt the reason was fair;
• properly investigated the issue;
• carried out the correct procedures;
• notified their employees that they might dismiss them;
• honoured their employee’s legal rights to be accompanied by a companion during the disciplinary meeting; and 
• gave their employee the chance to appeal the decision to dismiss.

Key Takeaways

For a dismissal to be fair, you need to have one of the five fair reasons for dismissal, such as your employee’s conduct or capability. However, you also have to act reasonably and follow fair and reasonable procedures for the dismissal to be fair. For example, you have to ensure you have correctly investigated any issue and allowed your employee a chance to appeal your decision for dismissal. If you dismiss staff unfairly, you could face an employment tribunal for unfair dismissal or wrongful dismissal. 

If you need help understanding when you can dismiss your staff 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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