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Dismissing an employee fairly: a refresher

9th March 2022 by Alana Penkethman

Categories: Employment News
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The law gives five potentially fair reasons for dismissal. The most commonly used reasons are redundancy, capability and misconduct, but a breach of a statutory duty or restriction, or some other substantial reason capable of justifying dismissal will also be potentially fair.

Even if your employee is guilty of misconduct or their job is clearly redundant, you still need to take care when dismissing. An employment tribunal will also decide if the dismissal was fair in all the circumstances.

As Alana Penkethman, employment law expert with Laceys Solicitors explains, it is crucial that employers follow the right steps to ensure dismissals are fair or the employee could bring a successful claim for unfair dismissal. Alana highlights pitfalls to avoid and ways businesses can minimise risks.

Why is the procedure so important?

When deciding if it was fair and reasonable to dismiss the employee, employment tribunals examine the procedure followed by the employer. If the procedure is unfair, the dismissal is almost always unfair. What makes a procedure fair will vary depending on the reason for the dismissal.

If the tribunal finds that the dismissal was unfair, the tribunal may order that the employee should be allowed to come back to work. More commonly, tribunals award compensation to the employee.

When dismissing someone for misconduct or culpable poor performance, employers must follow the Acas code of practice on disciplinary and grievance procedures. If not, the tribunal may increase the employee’s compensation by up to 25%.

A fair process can also protect you from the employee resigning and claiming constructive unfair dismissal during the process. Procedural failings such as delays, an inadequate investigation and not giving the employee a clear picture of the allegations against them, can entitle the employee to resign and claim constructive dismissal.

When can an employee bring a claim?

Usually, employees have the right to bring a claim for unfair dismissal once they have two years’ continuous service. However, from the first day of employment, employees are protected from dismissals for certain reasons.

Pitfalls to avoid

Even if the employee has less than two years’ service, they can still be protected from dismissal for a host of reasons. There are too many to list here, but these include reasons such as whistleblowing, taking time off for an antenatal appointment, or trade union membership. Employees are also protected from a discriminatory dismissal for a reason related to a protected characteristic such as gender, ethnicity, or sexual orientation. 

If the employee has almost two years’ service, before dismissing, make sure that you take notice periods into account. If you dismiss the employee without giving notice, one week’s statutory minimum notice can be added on to the date of dismissal. This may be enough to give them protection from unfair dismissal.  

Employers are sometimes caught out where they assume an individual is a casual worker or contractor who does not have the right to bring a claim for unfair dismissal. After ending the working relationship with the individual, they may claim that they were in fact an employee and bring a claim.

How can I minimise risks?

  • Ensure you have up-to-date and suitable procedures and that you follow these consistently.
  • Before ending the relationship with a casual worker or an employee with less than two years’ service, take advice to check it is safe to do so.
  • At the start of a procedure, allocate senior staff to deal with the different levels of the procedure. Try to ensure that the appeal is heard by someone senior to the person who dismissed the employee and that they have not been previously involved, so that they are ‘untainted’.
  • Consider bringing in a solicitor or consultant to carry out parts of the procedure, if there are not enough internal resources.
  • Be consistent in your decisions.

Our employment law solicitors can advise you on minimising risks and guide you through the dismissal process. Please contact Alana in the employment team on 01202 377872 or email a.penkethman@laceyssolicitors.co.uk for further help.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Alana Penkethman

Associate — Corporate and Commercial

Direct dial: 01202 377872

Email

  • “It’s a comfort to be able to rely on people who are professional and honest in their approach, having had to face a situation with difficult requirements for the first time it was always going to be challenging. Alana advised us all the way through, provided highly professional advise and options and helped guide us through to a successful end. We are truly happy with the service and will continue to use Alana and Laceys as needed.”

    Derek Wright

  • “I used Laceys for an employment related matter and was extremely satisfied with the service that they provided. Alana was everything that I could have hoped for: calm, professional, objective, reassuring and empathetic. I would not hesitate to recommend them.”

    Rick Nurse

  • “Alana helped me through a extremely difficult and emotional period in a professional and supportive manner. The process was over swiftly and I am very satisfied with the service, so thank you for everything.”

    Bradley Thompson

  • “At the outset Alana understood what I required. Explained the process, and delivered on the service. I was very happy with the process and outcome.”

    Andrew Taylor

Alana is an Associate in our Corporate and Commercial team and is an expert employment lawyer. She advises businesses and individuals on matters arising from recruitment to termination.

Alana provides pragmatic advice, ensuring problems are resolved as quickly as possible, and in turn minimising disruption and stress to both parties. When litigation is unavoidable, Alana excels in negotiations and will deliver robust representation.

Since qualification in 2011, Alana has developed a specialism in discrimination matters, and is passionate about equality in the workplace.

When Alana is not working, she enjoys flying with a hot air balloon team and is a keen cyclist. She also enjoys live music and plays the saxophone.

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