Taking the decision to terminate an employee can be a stressful one. How do you make sure you have a legitimate case? What’s the correct way to dismiss them to avoid being landed with an employment tribunal hearing? In this week’s blog we aim to shed some light on the factors you need to consider and will also explain the correct procedure to dismiss an employee safely.
What is dismissal?
Firstly, let’s look at the term dismissal. Dismissal is when you end an employee’s contract. There are many different kinds of dismissal including:
• Fair: You have a valid reason for dismissing someone such as redundancy, they committed gross misconduct, they are incapable of, or something prevents them legally being able to, do their job, e.g. they have lost their driving licence.
• Unfair: An employee can claim unfair dismissal and take you to an employment tribunal if they think the reason was unfair, you acted unreasonably or the reason you gave for dismissal wasn’t the real one. There are many reasons that are automatically deemed unfair: these include any discrimination over age, gender or race, pregnancy, acting as a trade union representative, joining or not joining a trade union and many more. You can find out more about unfair dismissal here
• Constructive: When an employee resigns because you’ve breached their employment contract. This could be because you cut their wages without agreement, unfairly increase workload, make them work in dangerous conditions for example.
• Wrongful: Wrongful dismissal is when you break the terms of an employee’s contract during the dismissal process. For example, dismissing someone without giving them propert notice.
What’s the difference between fair and unfair dismissal?
The difference between a fair and unfair dismissal rests entirely on two points; the reason for dismissal and how you act during the dismissal process. You must act ‘fairly’ and ‘reasonably’ and the law has very specific ways of defining these terms. To dismiss fairly you need a ‘fair’ reason such as conduct, behaviour, capability redundancy, breach of statutory restriction or some other substantial reason, such as a restructure. Even if you terminate via a fair procedure, if the reason isn’t ‘fair’ then the dismissal will be deemed unfair.
If your reason is fair, you must then act ‘reasonably’ before you terminate someone. This means you must investigate properly, consider alternatives and be consistent with how you have treated other employees. If you are dismissing an employee because of misconduct, you must conduct a thorough investigation before holding a disciplinary hearing and ensure they have the right to appeal your decision.
How to stay safe
To terminate an employee should be considered as a last resort. You should consider all possible alternatives before taking the decision to terminate. These alternatives will differ based on the particular issue you have with the employee. For example, if you are considering dismissing because of ill health, you should consider how you could get the employee back to work. You may need to consult their doctor, arrange an occupational health assessment or make adjustment to their role/work space if they are suffering from a disability. If on the other hand performance is the issue, then the employee must be warned about their short comings and given the time and support to improve.
If you make sure you act fairly and reasonably at all stages of the process, and have a legitimate reason for termination you should be safe from the penalties you may be concerned about from an employment tribunal. The ACAS (Advisory, Conciliation and Arbitration Service) code of practice has set out clear advice to business owners on how to dismiss someone properly. You can download the full code of practice here.
The implications of getting it wrong
If you are taken to an employment or industrial tribunal for unfair or wrongful dismissal the penalties could be considerable. You may be ordered to reinstate the employee into their previous position or ‘re-engage’ them, (re-employ them in a different job). You may have to pay compensation which varies depending on the employees age, gross weekly pay and length of service. The compensation a tribunal can award is limited unless you are penalised for unfair dismissal in cases relating to health and safety or whistleblowing. In these cases, compensation can be particularly severe.
If you are considering terminating an employees contract be sure to obtain professional advice to ensure you are working to the correct procedures. The team at Crosse HR are here to help whether you are looking for advice or a professional intermediary to ensure you get the resolution you desire whilst staying on the right side of the law.
Disciplinary in the workplace can be the most difficult part of managing your relationship with your employees. If you reach the point of no return and need to terminate the contract of an employee, the stressful nature of the situation can often fill employers with dread. Here’s our top 10 tips to help you deal with discipline in your business and ensure you are protected from any future employment tribunal claims.
1. Notify the employee of their misconduct in writing and invite them to a disciplinary meeting to discuss the consequences and next steps. Hold the meeting early in the week in a private and neutral location.
2. Ensure you have two other impartial employees present at the meeting to act as witnesses. This will help you avoid any ‘he said, she said’ disputes arising in the future or any misunderstanding of what occurred or what was said during the meeting.
3. Anticipate reactions. From what you know about the employee, try to anticipate how they will react to the disciplinary and pre-empt their questions and response. By taking time to prepare for all eventualities in advance you will be able to stay calm, control the meeting and be best placed to lead it to a successful conclusion.
4. Keep the meeting short and stick to the facts. It needn’t take any longer than 10 to 15 minutes. Simply cover the reasons for discipline or termination and focus on how the employees conduct contravened the company’s policies. Provide a short, clear statement about the decision, next steps and how logistical details will be handled.
5. Avoid getting into an argument or debate over the misconduct, this will only lead to a more stressful situation for you and your employee. Keep the meeting formal and professional and avoid getting upset, angry, raising your voice or using forceful words or behaviour.
6. Avoid any misunderstandings. Be firm and clearly communicate your policies on the poor conduct you are dealing with. Focus on the consequences of the conduct and the actions you will take next. By making sure you provide a written notice to the employee, and requiring their signature to confirm they understand the situation, you will avoid any misunderstandings or confusion in the future.
7. A written paper trail will help cover your back in the event of any disputes in the future. Ensure you document everything in the employee’s personnel file, including:
- The nature of the misconduct and date it occurred
- The nature of discipline imposed and date it was communicated to the employee
- The invitation to a disciplinary meeting
- Attendance of everyone present at the meeting
- The minutes of the meeting
- Supporting evidence of the misconduct
- Written notification of the disciplinary procedure, signed by the employee to confirm their understanding of the situation.
8. Answer any questions. During the disciplinary or termination meeting, invite any questions from the employee to ensure they leave with all the information they require and understand the next steps of the procedure.
9. It’s unwise to terminate employment on the spot. Consult an HR specialist or employment law solicitor to ensure you have all the documentation and evidence required to avoid any future legal action for unfair dismissal.
10. Be dignified. Treat the employee with empathy and respect, this will tend to deliver a more positive reaction from the employee. Give the employee time to gather their thoughts. If they’re being suspended or terminated, escort them from the premises in a dignified manner. Offer information regarding the next steps or what happens post termination.
For an informal conversation about any concerns you have with your firm’s disciplinary procedures, Crosse HR are here to help. Give us a call on 0330 555 1139 or email us at firstname.lastname@example.org.
Automatically Unfair Dismissal
There are certain reasons the law believes to be completely unfair to the employee regardless of what has happened in the course of their employment, essentially it is wholly illegal to dismiss someone for any of the reasons below and in this category it doesn’t matter how long an employee has worked for an employer.
Pregnancy – this covers everything to do with maternity, it is automatically unfair to dismiss a woman because she becomes pregnant. It’s not unheard of to mask a dismissal for pregnancy with some other reason for example poor performance, however this is never wise and tribunals are well versed and getting to the truth. Under section 4 of the Equality Act 2010 pregnancy is a “protected characteristic” meaning it is illegal to discriminate against a woman because she is pregnant, further pregnant woman have the right not to be dismissed because they are pregnant under section 99 of the Employment Rights Act 1996.
Enforcement of a statutory right – this means an employee should not be dismissed for trying to enforce a right afforded to them by law. If for example an employee was dismissed because he/she was disputing annual leave (which they are entitled to by law) then this would be automatically unfair. A list of statutory rights can be found on the Citizens Advice website.
Health and safety issues – An employee cannot be dismissed for raising a health and safety issue with the employer or taking action because of it. An example might be dismissing an employee for refusing to use faulty or dangerous equipment.
Whistle blowing – This area is not as clear as others however generally speaking in order for an automatically unfair dismissal to have taken place the information disclosed must be in the public interest. This means that the whistle blowing must be on something that is likely to affect other people e.g. the general public.
What is considered whistle blowing?
- A criminal offence being committed by the employer e.g. fraud
- A miscarriage of justice
- Illegal conduct or omissions by the company
- Damage to the environment of a risk of this happening
- A persons health and safety is in danger
Other Types of Unfair Dismissal
Misconduct – If an employer dismisses an employee for misconduct in their employment this can be particularly hard to challenge. The tribunal will apply a number of legal tests to a case to establish whether the employer fairly dismissed an employee for mis conduct, these are questions the tribunal will ask itself when coming to a decision:
- Did the employer have a genuine belief that the employee was guilty of misconduct?
- Was there reasonable grounds for the employer to believe the employee was guilty of misconduct?
- Did a full and proper investigation into the alleged misconduct take place?
- Was the dismissal a reasonable response to the misconduct?
Redundancy – Sometimes it is necessary to make people redundant in the workplace, however the tribunal will apply the following legal tests to establish whether making an employee redundant is fair:
- Was there a genuine need to make redundancies?
- Was the decision to select the employee is question fair?
- Was there a fair process of selection and consultation?
- Were reasonable efforts made to find the employee employment elsewhere in the organisation?
Long term sickness – Where an employee has been off sick for a considerable amount of time it may be fair for the employer to dismiss them, however this must be done in a fair and legal way. The tribunal will apply the following tests:
- Did the employer consult the employee before deciding to dismiss them?
- Was a proper investigation into the employee’s sickness/illness conducted?
- Is it likely the employee could have returned to work?
- Were other ways of getting the employee back to work explored?
This article does not cover all aspects of tribunals and employers should seek the appropriate advice if they are being taken to tribunal or believe it is likely they will be.
CrosseHR specialises in providing consultation to employers before, during and after a tribunal and can advise on all aspects of proceedings. For more information contact us on 0330 555 1139 or email email@example.com. You can also follow us on Twitter and connect to us on LinkedIn for regular HR insights.
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