Dismissing employees faqs
Many dismissals are straightforward but if the reason used for dismissal is not fair and genuine and/or the dismissal process followed is unreasonable, an employer can expose themselves to the risk of claims. Below we have set out some common queries.
1. What are the fair grounds for dismissal?
- capability – could be ill-health issues or not skilled enough to do the role
- illegality – for example, if the employee’s right to work in the UK expires
- some other substantial reason –where there is an overwhelming reason why the employee should be dismissed. There is no legal definition of the types of dismissals that can be included here, but typical examples would include, expiry of a fixed term contract or imprisonment of the employee.
2. Can I dismiss an employee during their probationary period?
Normally, yes. The contract will set out the notice to be given. Some contracts will be worded in such a way that dismissal can only take place at the end of the probationary period, not during, so always check.
Whilst an employee under two years’ service cannot bring an ordinary unfair dismissal claim, employees from Day 1 of their employment are protected from discrimination and have the right to bring other types of claims. An employer will therefore need to consider if there are any risks to the dismissal. At Ashtons HR Consulting, we can advise you on whether or not a probation dismissal is likely to be fair in law.
3. What process should I follow when choosing to dismiss an employee?
The employer should have a fair reason for dismissal as well as follow a fair process to dismiss.
It is helpful to have a disciplinary procedure set out in writing and available to all staff. The procedure should be followed to ensure a consistent approach is used.
The Acas guide. “Discipline and Grievances at work” sets out a fair procedure to follow: http://www.acas.org.uk/index.aspx?articleid=2179. Whilst the Code is not legally enforceable, Employment Tribunals will take the provisions into account when considering a case and this can lead to increase compensation for a successful employee.
Typically, a fair process would include:
- invitation to a formal disciplinary hearing with employee receiving notice of the hearing setting out the allegation and including any paperwork the employer wishes to rely upon
- a right to be accompanied to the disciplinary hearing and any later appeal,
- an opportunity to state their case, ask questions, call witnesses and produce evidence at the hearing
- an impartial decision maker at the disciplinary hearing and, again, at any later appeal
- provision of written explanation of any disciplinary decision
- right of appeal.
4. What notice period do I have to give when dismissing an employee?
The length of notice an employee needs to give to an employee should be set out in the employee’s contract and should be no less than the statutory minimum notice periods, which are:
- no minimum in the first month of employment
- one week after continuous service between one month and two years
- one week for each complete year of continuous service for service between two years and twelve years
- 12 weeks after twelve or more years' continuous service.
There are certain circumstances where an employer will not be required to give an employee notice, such as if the employee is dismissed for gross misconduct.
5. What is summary dismissal?
A summary dismissal occurs when an employee is dismissed instantly without notice or pay in lieu of notice, usually because of gross misconduct e.g. theft, fraud or violence. An act of gross misconduct is considered to be serious enough to overturn the employment contract.
If an employer feels summary dismissal is the only choice, the employer should still follow a fair procedure to dismiss. However, the process is less of a concern if the employee has under two years’ service, as the employee will be unable to challenge a process by way of an ordinary unfair dismissal claim, as long as they are unable to claim that they have been the victim of discrimination by the employer.
6. Do I need to hold an investigation meeting before making a decision to dismiss an employee?
Not always. An employer should investigate the incident and give the employee a chance to respond before deciding to dismiss. However, sometimes the incident very clearly happened and the disciplinary hearing will still afford the employee the opportunity to provide their version of events before the employer reaches any disciplinary decision.
7. Should I consider suspending an employee whilst the investigation is ongoing?
Suspension should only be considered if there is apparent evidence of the alleged misconduct and/or there are perceived risks to the business e.g. an employer does not wish there to be a risk of a repeat incident during the investigation where the allegation is stealing money from a shop counter. It should be made clear to the employee that the suspension it is not in itself a disciplinary action and does not involve any prejudgement. Suspension should always be on full pay.
8. Should I pause the process if the employee raises a grievance?
There is no legal requirement to postpone disciplinary proceedings where a grievance has been raised. However, an employer should acknowledge the grievance and carry out a thorough investigation in the usual way. If the content of the grievance is related to the reason for the dismissal, then it may be sensible to place the dismissal hearing on hold, whilst the employer awaits the outcome of the investigation. The findings of the investigation, may mean that the employer reaches a different disciplinary decision.
9. Does it matter if the employee has under two years’ service?
Yes. An employee with under two years’ service will not usually be able to bring a claim for constructive or unfair dismissal as the employee will not have the requisite two years’ continuous employment. This results in some employers dismissing with no process or a shorter process than normal where an employee has under two years’ service.
An employee, may still bring other claims that do not require a certain length of service e.g. dismissal because of whistleblowing or discrimination claims. An employer should therefore be confident that no such other claims apply before bypassing a normal disciplinary procedure or dismissing in the absence of a fair reason (see Q2 above).
10. Do I need to give the employee a reference following a dismissal?
An employer should provide a reference, if there was a written agreement to do so or if they are in a regulated industry, such as financial services. Otherwise, there is no obligation. Any reference provided must be fair and accurate and may include details of the employee’s performance and any dismissal. Employees may be able to challenge a reference if they think it is unfair or misleading.
To discuss your requirements, please contact Ashtons on 0333 222 0989, complete our online enquiry form or email firstname.lastname@example.org.