Dismissal

Carol Smith

Carol Smith

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19 Nov 2019

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Dismissal from work should always be your last resort. However, sometimes it’s unavoidable. Which is why it’s important to know the proper procedure and conduct it fairly. In this article, we’ll cover everything you need to know in preparation for terminating an employee.

Dismissal procedure

Firstly, you should have a distinct and clear procedure outlined in your handbook. Although not a legal requirement, you’re advised to follow the Acas Code of Practice on Disciplinary and Grievance Procedures. However, you may add steps if necessary.

The five Acas steps are as follows:

  1. Conduct an investigation: If you suspect an employee of wrongdoing you must attempt to work out the truth behind it. You can suspend the employee, but you must pay them until they’re formally dismissed.
  2. Draft an initial letter: Write a letter or email to the employee telling them what the issue is. Also inform them of the potential consequences, i.e. dismissal.
  3. Conduct a meeting: Arrange a meeting to discuss matters with the employee. You cannot make a decision on dismissal until this meeting is held. Give the employee a reasonable amount of time to prepare and rearrange if necessary.
  4. Inform them of your decision: Once you’re able, send a dismissal letter or email to the employee with your decision. You must mention that they can appeal the decision and how they should do this.
  5. Give them a chance to appeal: If possible, have someone who didn’t originally dismiss the employee decide the appeal. Also, make sure the employee is aware of their right to be accompanied to meetings.

In most cases, you must give your employee a notice of dismissal. The minimum you can give is ‘statutory notice.’ This is one week if the employee has been with the company for one month to two years. For those that have been with you longer, it’s one extra week (up until 12 weeks) for every week over two years.

Your organisation may have its own contractual notice period given under the terms of an employment contract. While there’s no specific timeframe for this, it can’t be lower than the statutory minimum notice period. A failure to give the required notice is likely to constitute a breach of the employment contract.

The only exception to this is in cases of gross misconduct. If the employee is guilty of gross misconduct you can dismiss them with no notice or pay in lieu of notice.

 

How many written warnings before dismissal?

Typically, two.

Standard practice is to issue one verbal, then two written warnings.

However, you should remove verbal warnings from an employee’s disciplinary record after six months, and written warnings after 12 months.

It’s worth noting, there are no legal requirements when it comes to written or verbal warnings. Your approach depends on your organisation’s disciplinary procedures.

 

Fair reasons for dismissal

There are five:

  1. Conduct/Misconduct
  2. Capability/Performance
  3. Redundancy
  4. Statutory illegality
  5. Some Other Substantial Reason (SOSR)

Only in cases of gross misconduct can an employee’s contract be terminated without notice. Such instant dismissal offences include:

  • Theft
  • Fraud
  • Harassment
  • Damage to company property
  • Health & safety breach
  • Use, possession, or buying/selling of drugs on the premises

 

Unfair reasons for dismissal

If an employee has at least two years’ service, then they’re protected against unfair dismissal. For example, if you are unable to justify the reason dismissing a staff member who’s been with your organisation for over two years, they can claim unfair dismissal in an employment tribunal.

There’re also instances where dismissals can be construed as automatic unfair dismissal. In this case, there’s no minimum length of service required for your employee to make a claim for unfair dismissal. Examples include dismissing an employee for:

  • Being pregnant
  • Pointing out health & safety risks
  • Questioning disregard for statutory employment rights
  • Whistleblowing
  • Jury service
  • Carrying out functions as a representative of a safety committee or employee representative

The basic award for unfair dismissal is a maximum of £15,750. If you end up paying out compensation, you’ll have to pay this and a compensatory award, which is a maximum of £86,444.

So it’s best to avoid at all costs.

You may also have heard the term ‘wrongful dismissal.’ There is a slight difference between this and unfair dismissal. If the termination of the individual’s employment is ‘wrongful’, it means it’s in breach of the employee’s contract. This could be because you’ve not given them notice or haven’t followed contractual procedure, for example.

 

Types of dismissal

You can dismiss an employee who has been with the company for less than two years. This is known as ‘short service dismissal’ and in most cases, these employees won’t be able to claim unfair dismissal.

However, these employees are still entitled to the appropriate notice, and they’re still protected against unreasonable dismissal on medical grounds.

Dismissal without notice can occur in cases of gross misconduct, as we previously specified.

The other dismissal we’ve not already mentioned is constructive dismissal.

This is when an employee leaves their job due to feeling “pushed out” by their employer or working standards. A good (but extreme) example of this would be if you stopped paying an employee, and so they left of their own accord.

It’s worth noting, this is also a type of unfair dismissal so an employee would need to have been with the organisation for two years or more to claim this.

 

Sample dismissal letters

Drafting an email—or letter—dismissing someone can be a tricky task. To give you an idea of how this should be structured, you can download a sample short service dismissal letter here.

You can also download an Acas dismissal meeting letter template here.

 

I need employment law advice on dismissals

Letting an employee go is never easy. It’s particularly difficult when investigating allegations of gross misconduct or discrimination. Luckily, Croner is here to help.

See how we can help your business today, by visiting our HR services page here.

Or, if you have urgent questions on employment law in the UK or dismissals, then you can get the support you need on 0808 145 3380.

About the Author

Carol Smith

Carol joined Croner in 2001 as an Employment Consultant advising a wide range of clients on all aspects of Employment Law and HR practice. She demonstrates particular expertise in complex disciplinary, grievance matters and reorganisation / redundancy.

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Carol Smith

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