Five Common Mistakes Employers Make When Dismissing Employees in England

The prospect of dismissing an employee is certainly unwanted and something most employers seek to avoid. Nonetheless, in some cases, you may find it necessary to dismiss an employee. As this can be a treacherous area of employment law, you will want to know what your obligations are when it comes to dismissing employees. This article will explain what you need to know about dismissing staff in England. It will examine five common mistakes employers make when dismissing employees. 

1. Unfair Dismissal

Generally speaking, employers can only dismiss an employee if they have a legitimate reason for doing so. The law looks at the five following factors to determine if the dismissal was fair:

• conduct;
• capability;
• redundancy;
• illegality; or
• some other substantial reason.

There are also automatically unfair reasons for dismissal. 

Your reason for dismissal will determine which of the dismissal procedures you use, so it is important to identify the cause for dismissal. 

Employers often confuse conduct and capability dismissals. Dismissing an employee for conduct should refer to unreasonable and/or inappropriate behaviour in the workplace. Common examples include: 

• stealing;
• excessive unapproved absences; and
• threatening or actual violence.

Dismissal for a capability reason is due to the inability of your employee to carry out their job role correctly. For instance, repeated failure to meet reasonable performance targets is a common instance.

2. Failing to Follow a Fair Dismissal Procedure

Once you have identified the factor(s) for dismissal, you must follow a fair dismissal procedure. A fair procedure will:

• mirror the ACAS code on disciplinary and grievance procedures if it is your disciplinary procedure;
• follow your policies;
• comply with contractual terms; and
• comply with employment law.

It is important to note that if your procedure does not follow the ACAS code and you carry out an unfair dismissal, an employment tribunal can increase compensation by up to 25%. 

However, employers often make the mistake of not following a fair procedure and also not following a procedure at all for those staff who have worked for less than two years of continuous service. Whilst staff who have worked for less than two years may be unable to bring a claim for unfair dismissal, they can claim that your final decision of dismissal was not right for other reasons such as discrimination based on, for example, their race or sexual orientation. Therefore, you must follow fair dismissal procedures when dismissing all staff.

3. Unclear Allegations Against Your Employee

As part of the dismissal procedure, you must disclose any allegations used as a basis for the dismissal to your employee. 

Not only should you make sure that the allegations are given clearly to your staff, but you must also be consistent with these during the procedure you take. If there is no clarity, your employee may accuse you of unlawful or unfair dismissal.

4. Breaching the Employment Contract

You must not breach your employment contract with your employee when you dismiss them. This is a common mistake employers make and can occur due to, for example:

• failing to give the correct notice period;
• not paying the correct contractual entitlements; or
• ending a fixed-term contract too early.

If you break your employment contract when you dismiss staff, you are likely to be no longer protected by it, which can mean, for example, that post-employment restrictions no longer apply to your employee. Breaching your employment contract can also cause you to face an employment tribunal with your employee claiming wrongful dismissal.

5. Lack of Appeal Process

When you dismiss your employees, you must inform them of their right to appeal the outcome. Unfortunately, many employers make the mistake of not offering an appeal process when dismissing their staff or offering one which is incorrect in terms of the process. 

To avoid making this mistake when dismissing your staff, ensure that you make it clear that an appeal is possible and then listen to your employee’s case. 

Key Takeaways

There are common mistakes employers make when they dismiss their staff. Importantly, the reason behind the dismissal must be fair and reasonable. You should follow a fair procedure and ensure the employee is aware of any allegations made against them. By avoiding any mistakes, you significantly lower your risk of facing an employment tribunal.

If you need help understanding common mistakes made by employers when dismissing staff 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.

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