Employers: Avoid unfair dismissal cases

Terminating an employee’s contract is one of the more difficult aspects of being a business owner, and it is a decision that certainly should not be taken lightly. Failure to stick to the appropriate guidelines regarding dismissal opens up a potential minefield for employers, who may find themselves taken to court and fined thousands of pounds should their tactics be deemed anything other than fair.

In this guide, we take a closer look at termination, along with ways to ensure you stick to the rules regarding this particularly tricky and complex aspect of employment law.

Terminating a contract

While dismissing an employee is never a desirable process, there are reasons for doing so that are deemed fair, meaning you would not face legal implications if you can provide proof for your case. These include:

• Poor performance
• Dangerous behaviour
• Misconduct
• A refusal to follow instructions
• Redundancy

By following the proper processes and observing your legal obligations as an employer, you can minimise the risk of facing unfair dismissal cases. If you feel an employee is not performing as they should be and their behaviour is unacceptable, you should try to carry out as many of the following processes as possible to ensure adherence to legal regulations.

Provide fair warning to the employee

All members of staff should be given the opportunity to reach the standards set by their employer, and be given a fair hearing if they have failed to do so. Every employer’s HR policy should determine fair and clear procedures for discipline and dismissal.

In employment law, it is quite common to hear the “three-strikes policy”, meaning an employee has three chances before they are dismissed, and while this is a strategy that many employers adopt, it is not a legal requirement. Employees should always be given fair warnings to improve their performance, and help if required. Remember, it is vitally important that you communicate with members of staff during difficult periods.

Employers do not, however, need to provide warnings or notice if the employee has committed gross misconduct. Depending on the nature of your business, examples of gross misconduct can include:

• Accepting or offering bribes
• Misusing confidential information
• Setting up a competing business
• Downloading pornography

Giving enough notice

The length of each employee’s notice period depends on how long they have worked for the business, but any employee can be instantly dismissed should you have proof of gross or serious misconduct such as theft, fraud or unacceptable behaviour. However, they must first be given a fair hearing about the circumstances surrounding the incident. In some cases, instant dismissal can affect the final payments that the member of staff receives, and you may also not be legally required to pay their pro-rata long service leave.

Final payments for dismissed staff

Dismissed employees are entitled to termination payments as part of employment law, which include:

• Unused holiday pay
• Wages they are owed
• Pro-rata long service leave

Unfair dismissal

Cases for unfair dismissal are brought when there is either no valid reason for the dismissal or the employee has not been given a warning to improve their performance. Another form of unfair dismissal is if an employer makes a position redundant, then shortly after hires a new employee to perform the same duties.

To read more about unfair dismissal please click here.