An employer’s guide to dismissal

As an employer, dismissing a member of staff can be extremely testing for many reasons. Whatever the circumstances, letting someone go can put a strain on dynamics in the workplace while also affecting overall morale.

One mistake businesses frequently make is proceeding with the dismissal of employees without seeking advice from experts who can give proper guidance through the process. Seeking advice from a legal professional before making a dismissal could save companies thousands of pounds should the member of staff claim for compensation.

In this guide, our expert employment contract law solicitors take a closer look at dismissal and the reasons behind it. This can be used by employers as a reference when making a case for dismissal against a particular employee. If you are an employee seeking to make an unfair dismissal, look at our resources for employees for support.

Fair reasons for dismissal

Business owners must ensure they have a fair reason for dismissing an employee, and without this there can be significant legal implications. Common causes for dismissal have been outlined in greater detail below.

Conduct

If the way an employee conducts themselves is poor, this could be reason enough to dismiss them. Usually, this type of behaviour includes problems such as:

• Poor discipline
• Drug or alcohol abuse
• Dishonesty or theft
• Missing work without explanation on several occasions

Ability

If an employee is continually failing to perform to the standard required of them, you could make a case for dismissal. Specific instances include:

• Failure to keep up with technological changes to the job
• Inability to get along with colleagues
• Long-term illness that makes it impossible for the job to be done

As an employer, it is your responsibility to provide correct and adequate training to members of staff so they are able to do their job. If an employee is still failing to perform, only then can a case for dismissal be legally made.

Long-term illness

In cases where an employee is off sick on a long-term basis, it is advised you look for an alternative course of action before dismissing them. While it is not illegal to dismiss an employee when they are absent through illness, some employers  find it difficult to do this.

It is important to consider the reasons why a worker is off sick. For instance, in some cases it could be that the job itself is making them unwell.

Employers are expected to allow a reasonable amount of time for a member of staff to recover from illness. This can depend on a number of factors, including:

• How long it will take to recover
• If it is certain the worker will recover
• How easy it is to get cover for the job
• Whether the job can be kept open

Redundancy

In short, redundancy occurs when an employer needs to reduce the size of the workforce. There are many reasons why this might be the case, including:

• The introduction of new technology that makes certain jobs unnecessary
• The job a person was hired to do no longer exists
• The business is closing down
• There is a need to cut costs and staff numbers might therefore be reduced

Different types of dismissal

There are a number of different types of dismissal that all employers should be aware of in order to avoid issues down the line. We have outlined each type, and what it means, below.

Fair and unfair dismissal

A dismissal can be deemed as fair or unfair depending on:

• The reasons for it
• How an employer acts during the dismissal process

Constructive dismissal

This is the term given when a member of staff has resigned due to a breach of contract. Usually, this takes the form of a single serious event or a string of less serious incidents.

An employee can legally claim constructive dismissal if you have:

• Unlawfully demoted them
• Reduced their wages without prior agreement
• Done little or nothing when they have reported harassment or bullying
• Increased their workload unfairly
• Changed the location of their workplace at short notice
• Made them work in dangerous conditions

Wrongful dismissal

Wrongful dismissal is used to describe cases where the terms of an employee’s contract have been broken in the dismissal process. For example, if you have dismissed an individual without giving them any notice.

If a member of staff thinks they have been dismissed unfairly, they can take their case to an employment tribunal.

How to ensure a dismissal is fair

As we have already mentioned, it is essential you have a valid reason for dismissing an employee. Even if you do have a fair reason, the dismissal can only legally be classed as so if you also act responsibly during the dismissal itself, as well as the disciplinary process leading up to it.

This can present a potential legal minefield as there is no concrete definition of reasonableness. However, should you be taken to an employment tribunal, it would consider whether you had:

• Carried out full and appropriate investigations where appropriate
• Genuinely believed that the reasons for dismissal were fair
• Followed correct procedures
• Informed the employee they were being considered for dismissal and listened to their views
• Allowed the employee to be accompanied at disciplinary/dismissal hearings
• Given the member of staff the chance to appeal

An important detail

You must set out your dismissal and disciplinary rules and procedures in writing. If you fail to do this, a tribunal can order you to pay compensation to the employee.