Employees who have been employed for two or more years are protected against unfair dismissal under the Employment Rights Act 1996. After that point, there are five fair reasons for dismissal. However, employers should bear in mind that it is equally important to show that you acted fairly in dismissing, for that reason.
This may involve general misconduct, serious or gross misconduct at or outside of work.
Information on is available on the government website regarding how employers should respond when misconduct is not serious or gross. In serious circumstances a “first” or “final’ written warning may be issued, explaining lack of improvement may lead to dismissal.
Where gross misconduct is committed, you can dismiss the employee immediately as long as you follow a fair procedure. Examples include:
– Failing to follow management instructions;
– Outside of work; or
– Persistent Lateness.
Employees capability may come into question if:
– They’re incapable of doing their job to a required standard; or
– They’re capable but unwilling to do their job properly.
You should offer extra time and support to help them reach the performance level you expect, especially when the capability is linked to health or disability.
If the employee cannot do their job and there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.
Side Note: For misconduct and poor performance cases, the ACAS Code of Practice on Discipline and Grievances must be adhered to as set out under s.207A of the Trade of Union and labour Relations (Consolidation) Act 1992.
This is where the position is no longer necessary or available in the company, for example:
– Your whole business closes;
– The place of business your employee works at closes; pr
– The need for employees to do a particular kind is reducing or has reduced.
Whatever the reason, it must be demonstrated that the job will no longer exist for redundancy to be genuine. All employees under notice of redundancy have the right to:
- reasonable time off to look for a new job or arrange training; and
- not be unfairly selected for redundancy.
It is important to try to find alternative employment within the organisation for employees made redundant, that are allowed to try out for 4 weeks without giving up pay.
This is where continued employment would result in breach of statutory law. For example, if an employee does not have the right to work, you would be able to rely on the reason of illegality for dismissal.
Some other Substantial Reason (SOSR)
This is somewhat of a “blanket” category for other legitimate reasons, however it must be a substantial reason and is more difficult to prove.
Examples for such reasons include:
– Conflicts of interest;
– Personality clashes; or
– Breakdown of mutual trust and confidence.
The above are the reasons for fair dismissal, however, it is important to remember that it is only fair if you act reasonable during dismissal and throughout the disciplinary process.
More information can be found on gov.uk to ensure fair conduct, which includes that the Employer:
– Genuinely believed that the reason was fair;
– Carried out proper investigations where appropriate;
– Followed the relevant procedures;
– Told the employee why they were being considered for dismissal and listened to their views;
– Allowed the employee to be accompanied at disciplinary/dismissal hearings; and
– Gave the employee the chance to appeal.
If you have recently been dismissed and you do not believe that your dismissal was fair (either for a fair reason or through a fair procedure) then please do not hesitate to get in touch.
By the Thrive Tribe