An employer’s guide to lawful dismissals – part one
There are many reasons why as an employer, you may wish to dismiss someone. You could have a concern about their performance, perhaps they call in sick weekly, or maybe they’re making one too many mistakes in their work.
But before dismissing an employee, as a business manager, director, or owner, you need to be aware of the risks. You must determine what rights the individual has, both from a statutory and contractual perspective.
We’re here to answer your frequently asked questions when dismissing an employee and help you navigate the legal maze easily.
Less than two year’s continuous service
If an employee has less than two years’ continuous service, in most cases you can terminate their employment by giving the required notice and notice pay.
You are not legally obliged to provide a reason or follow a prescribed procedure.
An employer should be aware that some reasons for dismissal are automatically unfair irrespective of length of service.
You must also be aware of issues of discrimination which do not require any length of service. As such you should always seek legal advice before acting.
More than two years’ service
An employee with more than two years’ service has the right not to be unfairly dismissed.
An employer must establish a fair reason,
follow fair procedure,
and have acted reasonably in the circumstances.
In most circumstances, an employee will be entitled to their wages, notice pay and any accrued untaken holiday on termination.
It is important to establish the reason for an employee’s poor performance. If an employee has under two years’ service, you can dismiss them provided the reason for their poor performance is not linked to a disability, or any other protected characteristic under the Equality Act 2010.
For an employee with more than two years’ service, you must follow a thorough capability procedure. You should provide the employee with clear targets and timeframes for improvement and schedule regular reviews of their performance. Appropriate training and supervision should be provided throughout. You may be able to dismiss the employee fairly if there is no significant improvement.
If an employee has more than two years continuous service, it is unlikely that you can dismiss them in the first instance.
A three-stage approach is often appropriate.
Stage one – verbal
Stage two – first warning
Stage three – final written warning
You should conduct a disciplinary process in accordance with the Acas Code of Practice or your own procedure, which will include an investigation into the misconduct, a disciplinary hearing, and the right to appeal.
An employer can implement an appropriate sanction based on the outcome of the hearing. If the poor behaviour or misconduct continues, an employer can then consider further sanction or dismissal.
If you need practical, expert employment law advice, or assistance with day-to-day HR, our accomplished and highly respected team of employment solicitors and advisers should be your first point of call.
Contact Oliver to discuss this further.
