This article is for general information purposes only and does not constitute legal advice. You should not act or rely upon this information.

How to dismiss fairly in England & Wales

These days just saying “you are fired” in an angry outburst Alan Sugar style, without having followed any kind of procedure is likely to land you with a claim for unfair, wrongful dismissal and/or discrimination. All of these can be costly, so it is better to be safe than sorry.

Dismissals come in all shapes, sizes and complexity. There are five potentially fair reasons for dismissal:

• redundancy
• conduct – often behaviour and/or attitude related
• capability – due to ill health or actual ability
• illegality – e.g. employee has been employed but later it is discovered that they do not have the right to work in the UK
• some other substantial reasons (SOSR)

In all the cases we recommend that you as a bare minimum at least hold a dismissal meeting, giving the employee, in writing, the right to bring a colleague or a trade union officer even though you do not recognise a trade union. You need to be seen to have acted reasonably and fairly in the eyes of the law. At the dismissal meeting the employee must be given an opportunity to state their case and any mitigating circumstances to be considered before a decision is made to dismiss. Even at this last stage you need to keep an open mind. If the decision is made to dismiss then you must allow a right to appeal against the decision.

Redundancy

Redundancy situations can be complex and the myth is that it normally arises where the employer is in financial trouble or struggling to provide work. A redundancy situation may arise when the employer is actually doing very well and due to restructuring and efficient working practices needs fewer staff to do the work.

In any redundancy eventuality you must follow a redundancy consultation process that is fair and reasonable.

‘For the purposes of the Employment Relations Act (ERA) an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly due to:

1. The fact that his employer has ceased or intends to cease – (a) to carry on the business for the purposes of which the employee was employed by him or (b) to carry on that business in t he place where the employee was employed, or
2. The fact that the requirement of that business – (a) for employees to carry out work of a particular kind, or (b) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.’

Ensure that you understand which employees that should and shouldn’t be in the ‘at risk pool’. You will need to conduct at least two consultations meetings either directly with each employee or with representatives. Which you choose to do will depend on the number of ‘at risk’ employees and whether you are dealing with union representatives.

The purpose of the meetings is to discuss the roles that are at risk of redundancy and whether there are any suggestions on how the potential redundancy may be prevented and to explore alternative suitable employment within the business for those at risk. Any suggestions provided must be considered and addressed. At the consultation meetings the process must be discussed including how if redundancies cannot be averted employees may be selected. Any kind of selection criteria used must not be discriminatory and based on facts and where possible figures.

The final meeting will probably be a dismissal meeting and the procedure mentioned above must be followed.

Conduct

Usually conduct issues tend to revolve around:

• lateness
• unauthorised absence
• insubordination in response to a reasonable request
• drug or alcohol issue
• theft or dishonesty
• bringing the company into disrepute

We would recommend that you try to resolve this informally, keeping notes at each meeting. If after this the employee fails to improve then ensure you follow a disciplinary procedure as a minimum using the ACAS code or contact us for advice and guidance and we can draft a disciplinary procedure for you if necessary.

Capability

Capability tends to fall in two camps:

1. Employee is unable to carry out the job they were employed for even after they were given training and support e.g. introduction of new technology or improved working practices
2. Long-term or persistent illness, making it impossible for them to do their job to the level and standard required. Or whether the job itself is making the employee ill. There is a common myth that employees who are off sick cannot be dismissed.

We would recommend that you try to resolve issue (a) informally, providing necessary training and support. Ensure notes are kept of each meeting and the required standards. If after this the employee fails to improve then ensure you follow a capability procedure, which is similar to a disciplinary procedure. Contact us for advice and guidance and a copy of a capability procedure.

If the capability is due to illness - persistent intermittent or long-term absence as in issue (b) then ensure:

• That you seek a medical report from the employee’s GP or Consultant or ask the employee to visit a company doctor. You must request permission to obtain this report from the employee in writing. You may also refer the employee to occupational health. The report should outline the treatment, whether any adjustment is required in the workplace for the employee to work (in the short or long-term) and the prognosis. You will then be in a position to make a decision on what, if anything, you need to do to assist the employee return to work. You need to allow a reasonable amount of time off sick to allow the employee to recover. It is important that you ascertain whether the employee is likely to be classed as disabled as defined by the Equality Act 2010. Dismissal because of a disability may be unlawful discrimination.
• For intermittent sickness absence, consider whether it is the job or the way they are performing their job that is making them ill. Is there a pattern to the absences, such as Fridays and/or Mondays! You may need a report from their GP and/or occupational health. If after formal warnings under the capability procedure there is little or no improvement in the absence rate you may be able to dismiss the employee but, ensure a formal dismissal meeting is held.

Dismissing an employee due to capability issues can be fraught with pitfalls and we would strongly recommend you seek professional advice.

A statutory restriction

This applies when by continuing to employ the employee you would be breaking the law, e.g. the employee is required to drive as part of their job and they lose their licence and you are unable to find them alternative employment that does not require driving.

Some other substantial reasons (SOSR)

The types of issues that fall within this category are:

• Employee is sent to prison.
• Unreasonable refusal to accept a company restructure that changes the employees terms and conditions.
• Fundamental breakdown in the working relationship.
• Third party pressure that can't be linked to the employee's misconduct.

This is not an exhaustive list. You would be expected to look at alternatives before choosing to dismiss.

 

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