On What Grounds Can I Dismiss an Employee?
Employees can normally be dismissed on any grounds within two years after signing an employment contract. Beyond that period, they may file a claim of “unfair” dismissal before an employment tribunal in accordance with the Employment Rights Act 1996.
Here are issues that may stem from an employment dismissal:
- Unfair Dismissal claim
- Wrongful dismissal claim
- Constructive Dismissal issues
We will explain each of the above on this page and what you should do as an employer to protect your business from an employment dismissal claim or issue.
For assistance with creating a dismissal procedure or legal support at the employment tribunal on the basis of dismissing an employee, call us today at 03334149244 or reach out to us online via live chat or contact form.
Unfair dismissal is one that’s not motivated by what UK employment law deems a “fair reason”.
There are some automatically unfair reasons for dismissal, including dismissal on the ground of religion and race.
To be clear on what the difference is between being unfairly dismissed and fairly dismissed, these are the statutory reasons why you may dismiss employees fairly:
- Poor performance
- Statutory restrictions
- Impossibility of moving on with the employment
- Other substantial reasons
Let’s give a quick overview of each of these reasons:
When an employee is incapable of doing their work, or they can’t do it properly, you may carry out performance management and issue warnings.
Nevertheless, poor performance should not be reduced to individual instances of badly-executed tasks. Rather, poor performance refers to a trend of continuous mishaps and a general inability to reach certain milestones over a span of time.
Illness could also entail poor performance, but it’s not treated in the same manner.
If an employee is unable to do their job optimally due to illness, you’d be obliged to first look for ways to support them by either trying to allocate them to a different position or giving them enough time and leeway to recover. If the illness is persistent or long-term and there are no reasonable alternatives, you may proceed with the dismissal.
If a position is no longer required, you’re effectively making it redundant. For example, the workload might have reduced significantly, or you got a hold of technology that allows you to execute automated tasks that were originally manned (technological redundancy).
Redundancies have to be made for a genuine reason and not based on discriminatory criteria. You must also attempt to consult with the individual employees and, if necessary, with representatives of trade unions before moving onward with the redundancy process.
You can dismiss an employee who has engaged in misconduct. This misconduct can be minor, serious, or gross.
Minor misconduct is addressed via an ordinary procedure in which you must first issue written warnings. Examples of minor misconduct include frequent lateness, unauthorised absence, or negligence when handling information.
Gross misconduct includes discrimination, frontal and unjustified insubordination, theft, or physical violence. In any of these cases, you may follow a summary dismissal procedure instead, in which case the decision to dismiss may be taken immediately and without prior notice or warning.
You’re not obliged to maintain a working relationship with an individual who would break the law when working for you.
Examples of individuals with statutory restrictions would be holders of a visa that doesn’t allow them to work or people who don’t have the needed licence to operate certain machinery.
Other Substantial Reasons
Substantial reasons encompass all the possible scenarios in which an employee’s presence in the workplace can be detrimental to the business’s goals.
For example, when a person doesn’t get along with other employees or has a conflict of interests (e.g., a close relative or partner working for the competition), you can conclude that there is a substantial reason for dismissal.
The difference between an unfair and wrongful dismissal is that wrongful dismissals stem from a breach in the employee’s contract, whereas unfair dismissals violate statutory rights (as in those contained in legal provisions).
Wrongful dismissals can be claimed even if the affected employee has not met the 2-year employment requisite. A contract claim is not dependent on the passage of time unless the contract itself stipulates as much.
Contractual breaches that constitute wrongful dismissals, for the most part, touch upon matters such as the contractual notice period and notice pay. Wrongful dismissals can also occur when contractual grounds and/or procedures were not met.
An employee might raise a claim for wrongful dismissal even on account of a breach of the statutory minimum notice period (non-contractual).
Rules for Wrongful Dismissal Claims
It’s not enough to claim a contractual or notice period breach. This breach must have caused a loss or damage to the employee (including loss of wages sustained) supported by evidence.
Employment tribunal compensations that can be awarded for wrongful dismissals cannot exceed £25,000, corresponding to the net losses accrued (including benefits that would have been accumulated during the notice period like bonuses. car allowance, and private health cover). Amounts higher than £25,000 would have to be taken to higher civil courts.
If the employee makes a wrongful dismissal claim sometime after three months (minus one day) from the date of termination, you could oppose it by replying that it was overdue (in the event that the employment tribunal doesn’t declare it so).
However, if the compensation amount demanded exceeds the £25,000 cap, and the employee wants to take the case to a civil court, they can benefit from a six-year limitation period.
What is the Notice Period for Wrongful Dismissal?
The notice period is the timeframe that both parties should award each other in case one of them decides to terminate the contract so that the other party may “fill any gaps” resulting from the termination.
Depending on which side wants to end the working relationship, during that period, the dismissed employee may look for other jobs, while the employer can find a person to fill the vacant position if the employee decides to quit.
The maximum statutory notice period for employees is 12 weeks (three months). Employees, on the flip side, should work for a minimum of one week after quitting their job if they were employed for at least one month.
Can I Justify the Dismissal Without a Notice Period?
The only grounds by which you could bypass the notice period (and notice pay) are gross misconduct or serious breach of contract, for it’s understood that by allowing the offender to remain in the company, you and/or your company could experience serious risks.
You’d still have to collect evidence of the offence to justify your decision, as well as hand out this decision in writing if you want to bolster your chances of winning a prospective tribunal case.
A situation in which an employee may feel forced to resign due to a serious breach on your end is frequently construed as a type of dismissal (constructive dismissal). In this case, no dismissal letter is needed, for the breach takes its place.
Constructive dismissals are very tricky to tackle, especially if there were no grievances raised by the employee before resigning. For this reason, it’s always crucial to maintain close contact with employees and obtain as much feedback as possible from them in order to address any issue that could prompt a constructive dismissal claim in the future.
Even when not mandatory, it’s always recommended to follow a disciplinary procedure, albeit you probably won’t have to stick to a formal one.
However, in the case of dismissals for employees who have worked for your company for more than two years, the disciplinary procedure is not optional, though it’s not always obligatory to abide by the rules set out in the Acas Code of Practice on disciplinary and grievance procedures, instead following the guidelines devised in your staff handbook, the employment contract, or another similar instrument.
Save for instances of serious or gross misconduct, you ought to hand out an initial and final warning to your employee, as well as grant them the chance to defend themselves by organising hearings wherein they can present arguments and evidence in their favour.
Employees have the right to appeal the decision if they feel that there were serious errors in judgment. This appeal should be heard by a different person from the one who conducted the original procedure.
How We Can Help
We understand how stressful and time-consuming these employment management matters can become, especially under a regulatory framework as dense as the one we briefly described.
UK employment law does not show much leniency towards employers, especially on these topics, for which reason you should get the aid of a qualified employment solicitor who can help you cope with all the risks you might be exposed to.
Call us at 03334149244 or reach out to us online. Our employment specialists are very experienced in handling employment contracts and matters concerning dismissals from both sides of the relationship, so you’ll get the most accurate advice on how to proceed in order to elude any prospective tribunal claim or whenever you’re facing one.
A grievance procedure is initiated as a response to a complaint raised by an employee, and it follows a similar format to disciplinary procedures in that the employer or manager must gather evidence, analyse it, and decide accordingly. The decision may likewise be appealed. You should have a fair procedure as an employer.
The maximum statutory tribunal compensation amount for unfair dismissals is £93,878 or 52 weeks’ pay (whichever is the lowest).
Pay in lieu of notice (PILON) is a typical way to circumvent a notice period if you feel that it’s too risky to have a former employee inside the workplace. In this scenario, you’re off the hook, and unless there were verifiable losses resulting from that action, any wrongful dismissal claim shouldn’t be able to prosper legally.