Dismissing an Employee
Employers must have a fair reason for dismissing an employee and must follow a fair procedure when doing so. Failure to do so puts the employer at risk of an Employment Tribunal Claim.
Fair reasons for dismissing an employee include:
- Misconduct, e.g. fraud or discriminating against another employee
- Business re-organisation
- Employee’s ability to do their job (capability)
- Employee’s breach of employment contract
What is a Fair Procedure for a Dismissal?
When an employer has a fair reason for dismissing an employee, a fair dismissal procedure must always be adhered to or the employer may be at risk of an Employment Tribunal claim. The Employment Tribunal will consider whether an employer has acted fairly and whether the employer has considered all reasonable alternatives prior to the dismissal, e.g. disciplinary procedures or a transfer to another role.
The dismissal is only deemed fair if the employer acts reasonably during the disciplinary and dismissal process. Despite there being no legal definition of what ‘reasonably’ means, if an employer was taken to an Employment Tribunal, they would consider whether the employer:
- Genuinely believed the reason for dismissal was fair
- Carried out the proper and appropriate investigations
- Followed their own in-house procedures
- Informed the employee properly about them being dismissed
- Allowed the employee to be accompanied at dismissal hearings
- Gave the employee a chance to appeal.
Wrongful Dismissal Claims
If an employer fails to follow a fair dismissal procedure, a dismissed employee can make a wrongful dismissal employment tribunal claim. Reasons for wrongful dismissal claims include, an employer’s failure to give adequate notice where there is no gross misconduct, ending a fixed term contract before the end of the term, failure to carry out disciplinary procedures properly or failure to follow redundancy procedures.
Unfair Dismissal Claims
An employer must follow a fair dismissal procedure otherwise they are at risk of an Employment Tribunal claim. An Employment Tribunal can find that a dismissal was for a fair reason but make an award because the employer did not follow a fair procedure.
Under the Employment Rights Act, employers can seek to argue that an employee has been dismissed for a potentially fair reason such as misconduct or ill-health.
It is important that employers ensure their dismissal procedures are fair and comply with the statutory dismissal procedure. For example, if an employer fails to allow an employee to be accompanied to disciplinary hearings or fails to consider alternatives such as a demotion, re-deployment or other disciplinary action, a dismissed employee will have an Employment Tribunal claim to pursue. Any investigation into disciplinary or misconduct concerns must be adequate and fair, if not, a dismissed employee will have an Employment Tribunal claim. An employer also must allow a right of appeal and advise the employee of this right.
Dismissing an employee should not be a decision that is taken lightly, it can be very costly and needs to be carefully considered. It is recommended that employers seek professional legal advice prior to beginning the dismissal process to ensure the correct procedures are followed.
Our employment team can provide the appropriate advice and guidance in relation to Dismissal. They offer no-obligation initial appointments and can meet you at any of our office locations in Market Harborough, Leicester or Wigston. You can call the team directly via 0116 212 1000, alternatively complete our online contact form and we will get back in touch with you.