An employee’s time at your business may come to an end for several reasons. They may resign, suffer from ill health, retire, or you may need to dismiss them.
If you are considering dismissing an employee, it is vital that you understand the grounds on which you can fairly dismiss someone and follow the correct fair process to prevent potential claims for unfair dismissal. At Spire we have a wealth of knowledge which is at your disposal to gain advice on the issues that arise when a potential dismissal situation arises.
There are five reasons that an employer can use to fairly dismiss an employee:
- Capability – the employee cannot do their job properly
- Conduct – the employee has broken the terms of their employment
- Redundancy – there is not enough work for the employee
- Illegality – continuing the employment would break the law, it would be illegal to continue employment, such as, the employee does not have the right to work in the UK
- Some other substantial reason (SOSR) – it must be of ‘some other substantial reason’ of such as to justify the dismissal of an. There are no set rules about what is a ‘substantial reason’ for dismissal and when such a dismissal will be fair, which means that each case will depend on the particular facts and circumstances.
Unfair dismissal
As an employer, we understand that your focus is to avoid the distraction of being involved in litigation which is why we work from a clear set of principles to enable you to focus on your business.
An unfair dismissal is when an employer does not have a fair reason or does not act in a fair way when ending an employee’s contract.
An employee generally needs to have been employed for two or more years to make an unfair dismissal claim. This is unless one of the exceptions to the rules applies such as the claim relates to breaches of health and safety, trade union membership, whistleblowing, or discrimination.
As the employer you must demonstrate that the dismissal was for at least one of the above five reasons. The Employment Tribunal will then consider all the circumstances around the dismissal including the size, the administrative resources of the employer, the investigation process, and procedure that was followed.
We are here to help at every step when an investigation into an employee’s conduct arises. We assist with the process and the procedure to be followed, providing clear, pragmatic advice.
The Employment Tribunal is obliged to consider whether an employer had followed the Acas Code of Practice on Disciplinary and Grievance Procedures. This code recommends that an employer carries out a number of steps to complete the process such as:
- Investigating the disciplinary matter by holding an investigation meeting
- Inviting the employee to a disciplinary hearing in writing. The letter must provide information about the matter and the possible consequences. An employer should inform the employee that they have a right to be accompanied by a trade union representative or a colleague and that they will be given the opportunity to present their case
- Provide the evidence relied on for the disciplinary meeting
- Following this hearing, if the employer decides to dismiss the employee, they should notify the employee in writing and give them an opportunity to appeal the decision
We will assist you with the investigation, the relevant materials to be considered at the disciplinary meeting and can be present at the meeting should you request this. If an employer fails to follow the Acas code, the Employment Tribunal may find that the dismissal was unfair, resulting in a finding for the employee and with the additional penalty of an uplift of up to 25% in the compensation payable.
Redundancy
Employers may consider redundancy as a means to reduce their staffing when looking at ways of cutting costs. We provide detailed advice to you when you are considering making redundancies, it is important for you as an employer to seek legal advice to ensure you are following best current practice.
It is important that you follow a fair and reasonable procedure as part of the process, which includes consultation as early as possible with your employees, a fair basis for selection, and for consideration to be given to any alternative employment which might be available. We have supporting documentation that you can use to take you through the process and answer any questions you may have about the process.
Before you dismiss an employee, it is important to seek legal advice to ensure you do so fairly in order to minimise the risk of an unfair dismissal claim.
We have extensive experience with assisting businesses when reducing employee head count and provide pragmatic and timely advice while protecting your business to reduce disruptive and costly legal proceedings.
