The dismissal of an employee
There may be many reasons why an employer may feel that they have to dismiss an employee and it may be a very problematic time for the employer.
Accordingly if an employer wishes to dismiss an employee if they want to do this correct then there are a number of issues which they should take into consideration.
When can an employee bring a claim for wrongful or unfair dismissal?
That the employee has been dismissed for a reason other than one which is allowed by law
That the employee has been dismissed without the correct procedure being followed
That the employee has been dismissed without the proper amount of notice being given
If an employer wrongfully or unfairly dismisses an employee will they be open to legal action?
If an employer wrongfully or unfairly dismisses an employee then they will leave themselves open for legal challenge by that employee. Furthermore where the claim by that employee is successful then can in certain cases be able to claim substantial amounts of damages.
As an employer if a claim is brought against me even if it is unsuccessful could this cause potential problems?
Even in cases where the claim is successful the costs of defending the claim may be significant especially in terms of management time. Accordingly as an employer it is imperative that the proper procedures are followed when dismissing an employee.
As an employer how should I ensure that I dismiss an employee fairly and properly?
The first thing for an employer to note is that the decision to dismiss an employee must be fair.
When will a decision to dismiss an employee be regarded as fair?
A decision to dismiss an employee will be regarded as fair if:
It relates to the employee’s conduct
It relates to the employee’s capability or qualifications
It is because of redundancy
It is because the employee has reached normal retirement age
Where continuing to employ that person would be illegal – for example due to their immigration status
The dismissal is for some other substantial reasons – i.e. a fair reason that does not fall within the above categories
What happens if an employer dismisses an employee for any other reason?
If an employer dismisses an employee for any other reason this will be regarded as an unfair dismissal.
Can any employee bring a claim of unfair dismissal against their employer?
Generally speaking only employees who have been employed for one year can bring a claim for unfair dismissal. However, certain dismissals will be regarded as automatically unfair regardless of this requirement.
As an employer must I ensure that I follow a fair procedure when dismissing an employee?
An employer must follow a fair procedure when dismissing an employee even if the dismissal is for a fair reason.
What procedure should I follow for a dismissal for poor performance?
In cases of poor performance or misconduct an employer should ensure that they comply with the ACAS Code of Practice. If an employer fails to do this then this could result in a finding of unfair dismissal.
What procedure should I follow when dismissing an employee on grounds of retirement?
When an employer is dismissing an employee on grounds of retirement that employer is required to implement a planned retirement procedure as the employee approaches retirement age. In this situation the employee must be given 6 months written notice and have their request not to retire considered by the employer.
What procedure must an employer follow for a general dismissal case?
For all other types of general dismissal including redundancy an employer will still be required to follow a fair procedure whereby the employee is given sufficient information about the reasons for their potential dismissal and the opportunity to respond at a hearing or a meeting before a final decision is reached.
As an employer should I ensure that an employee is given a right of appeal?
In most cases it is important to ensure that an employee who has been dismissed is given a full right of appeal.
As an employer must I be able to show that I acted reasonably in dismissing an employee?
An employer will be required to show that they acted reasonably in dismissing an employee for that reason. This will often depend upon the particular circumstances of the case whereby an employer will be required to show that certain factors were taken into consideration in dismissing the employee.
As an employer am I required to dismiss an employee in accordance with a specific notice period?
When an employer dismisses an employee they are required to give them adequate notice or payment in lieu of this notice. This does not apply to cases of gross misconduct.
How much notice am I required to give?
If the notice period is not specified in the employment contract then the employer will be required to give reasonable notice to the employee.
How much notice is reasonable notice?
Employees with continuous employment of at least one month but less than two years are entitled to at least one weeks’ notice from the employer.
Employees with continuous employment of two years are more are entitled to one weeks’ notice for each complete year up to a maximum of 12 weeks’ notice after 12 years.
Are there any other issues which I should be aware of as an employer?
As an employer it is often important to tackle issues as soon as they arise through an informal meeting with the employee. If this does not resolve the issue then you may have to use more formal procedures.
Often when employing new employees an employer may be able to use a probationary period to provide the employee with any doubts which they may have over their performance.
Employers should be careful when corresponding with an employee by taking copies of all correspondence but also in not using any threatening or aggressive language.