dismissing an employee

Dismissing an employee can be tricky, so it is important to seek legal advice from an expert employment law solicitor who will guide you through the process. 

What is an unfair dismissal claim?

A claim for unfair dismissal can be made by an employee to the employment tribunal if they believe either the reason for their dismissal and/or the process followed in the handling of their dismissal was unfair.

Should a claim for unfair dismissal be successful, the employment tribunal can make an award for compensation (a basic award and a compensatory award) or an order for reinstatement or re-engagement.

How to dismiss an employee without risking a claim

The risk of an unfair dismissal claim cannot be completely eliminated, however, steps can be taken to avoid such a claim and put the company in the best position to defend it, if it were to arise. 

  1. Establish the five fair reasons for dismissal

    In the Employment Rights Act 1996, there are five potentially fair reasons for an employee dismissal. These include:

    1. Capability or qualifications
      An employee’s inability to carry out a job due to the lack of skills required. 

    2. Conduct
      An employee has conducted themselves in the wrong way, for example filed fraudulent expenses or acted in a way that breaches the trust and confidence required in the employer/employee relationship.

    3. Redundancy
      The work of a particular kind has ceased or diminished.

    4. Breach of statutory duty or restriction
      An employee does not have a right to work permit. 

    5. Some other substantial reason (SOSR)
      We encourage taking legal advice before dismissing for this reason. 

  2. Follow the correct employee dismissal procedure

    Even if you as the employer have established a potentially fair reason for dismissing an employee, the correct procedure must be followed. For example, you should follow your own disciplinary procedure or capability procedure.

    In addition to your own procedures, employers should also follow the ACAS Code of Practice on disciplinary and grievance procedures as a minimum requirement. The failure to do so will entitle the employment tribunal to increase any compensation awarded in a successful unfair dismissal claim by up to 25%. 

    Should you need assistance with drafting a disciplinary or capability procedure or require a review of the procedures you have in place, please contact a member of our expert team.

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  3. Check the employee’s contract

    It is sometimes possible to dismiss an employee fairly but still be in breach of their employment contract, for example by not giving them the correct notice period.

    This will be a breach of their contract meaning that you cannot rely on valuable protections in the contract such as post-employment restrictions.

  4. Utilise payment in lieu notice

    Payment in lieu notice is a contractual right that enables businesses to pay an employee a lump sum rather than require them to work their notice period.

    This is often the basic salary only rather than other contractual benefits and any holiday entitlement for the full notice period so is a useful option for a business. 

How our employment solicitors can help

For a variety of reasons, there may be times when you may wish to dismiss an employee.

However, dismissals can be a tricky process to navigate especially when high emotions may be involved. This is why it is important to seek legal advice from our expert employment law solicitors who will guide you through how to dismiss an employee without risking a claim for unfair dismissal.

Our employment solicitors can provide expert legal advice on how to dismiss an employee fairly to help eliminate the need to worry about an unfair dismissal claim.

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Dismissing an employee FAQs

We help clients nip problems in the bud and resolve their employment issues every day.

Here are the most common questions we receive in regard to dismissing an employee.

  1. What does it mean to terminate an employee?

    Terminating an employee means bringing their contract of employment to an end.

    The contract can be lawfully terminated if the employer can show a genuine and valid reason for it alongside a fair process having been followed (if they have over two years’ service).

  2. What do you say to an employee when dismissing them?

    When you have followed the correct procedures and deemed the appropriate outcome is to dismiss your employee, you should confirm this in writing.

    The dismissal letter will need to confirm the reasons for the dismissal, when the employment contract will end, whether the employer is required to work their notice period, and ensure they are notified of their right to appeal against the dismissal.

  3. How long does an employee have to work to make an unfair dismissal claim?

    An employee must have continuous service of two years with their employer in order to bring a claim for unfair dismissal. However, in some circumstances the two year rule will not apply and a dismissal will automatically be deemed as unfair.

    This will be if the dismissal has occurred on the grounds of discrimination or following a protected act. Examples include: 

    • Pregnancy 

    • Parental leave

    • Requests for flexible working

    • Whistleblowing

  4. Do I need to follow a procedure to dismiss an employee with less than two years’ service?

    Potentially not as the individual will not be able to pursue a claim for unfair dismissal.

    Always seek advice to ensure there is no risk of a claim for automatic unfair dismissal or discrimination. If not, then you can dismiss an employee without following a full disciplinary procedure. 

  5. Can we dismiss an employee who has been on long-term sick leave and shows no sign of recovering?

    Yes, however, we need to ensure a correct and fair procedure is followed. This procedure should be contained in your capability policy or sickness policy.

    The procedure will often include review meetings with the employee to determine if there are any reasonable adjustments you can make as their employer to assist with their return to work.

    Should this not be an option, the next step would be to obtain an Occupational Health Report to evidence a return to work not being achievable. Always seek legal advice to avoid any disability discrimination claims.

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  6. Can we dismiss an employee who is pregnant?

    An employee cannot be dismissed on the grounds of pregnancy alone as this amounts to discrimination. An employee can bring a claim for discrimination regardless of their length of service with their employer. 

    However, should an employee have acted in a manner that falls under one of the five fair reasons outlined above, and this is not linked to their pregnancy in any way, the dismissal process can be followed.

    For example, if a pregnant employee has been bullying their colleagues this would be a valid ground for dismissal as it does not relate to her pregnancy. Whereas if a pregnant employee has an increase in work absence due to morning sickness, this would be difficult to justify as being a fair dismissal as it is linked to the protected characteristic of pregnancy. 

    Ultimately, extra care would need to be taken here and we would advise you to contact us in the first instance to ensure the correct procedure is being followed. 

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Contact our employment solicitors

Submit an enquiry and one of our expert employment law solicitors will be in touch as soon as possible to discuss your needs.

Or call the employment team on 01522 515987

Oliver Tasker, Wilkin Chapman LLP
Partner & Head of Employment Oliver Tasker 01522 515987 Lincoln
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