The Five Fair Reasons for Dismissal - A Guide

Dismissing staff from your company can be a challenging task and getting it wrong could result in a tribunal claim being raised against you. There are five fair reasons for dismissal under the Employment Rights Act 1996, that all employers should make note of, as the risk if correct and compliant procedures are not followed can be very costly, both reputationally and financially.

Talk to a member of our team today and get expert HR and Employment Law advice. Call Croner today on 01455 858 132.

• What are the fair reasons for dismissal?
• Dismissal for misconduct
• Capability dismissal
• Redundancy
• Statutory restriction
• Dismissal for some other substantial reason (SOSR)
• Get expert support on fair dismissal

Employees with at least two years of service can currently bring tribunal claims for unfair dismissal (this is expected change under the Employment Rights Bill), however, any employee, regardless of length of service, can bring a claim if the dismissal is unfair.

If you own a business, chances are you will face the situation of dismissing an employee at some point. When this happens, you must ensure that you are legally compliant.

What are the fair reasons for dismissal?

It is important to understand when you can you lawfully dismiss an employee, and what process to follow to ensure that you remain compliant with UK Employment Law.

Dismissal for misconduct

One of the five reasons for fair dismissal of an employee is for their conduct whilst at work. Conduct is a broad term, which can vary in order of severity from minor to major. You might consider dismissal due to conduct for repeated minor offences. These include:

• Disobeying instructions from management on numerous occasions.
• Continually showing poor attendance.
• Disclosing private company information.

However, there are one-off acts that could also be a cause for summary (immediate) dismissal, this usually considered for acts of gross misconduct, such as:

• Theft.
• Violence.
• Drug abuse in the workplace.

Important: If you decide to dismiss a staff member for misconduct, you must still follow a fair process. Consider if a warning is more appropriate than dismissal regardless of the length of service.

To determine whether the issue at hand is serious enough to warrant a dismissal, you should follow fair procedure. This involves a full investigation into the allegations. If this finds that there is merit to the accusation, begin implementing your disciplinary procedure.

Ensure your investigation takes into account all evidence gathered. You must also provide the accused employee an opportunity to defend themselves.

Capability dismissal

This type of dismissal arises when an employee doesn’t have the ability, skills, or qualification to do the role they were hired to do. This includes situations involving disability or illness, taking into account measures put in place to help them with their capability issue.

To dismiss someone for capability, you’ll need to demonstrate two things:

1. Why the employee is incapable of performing their role against their job description.
2. Why no steps taken by the company can help them.

This means you should take all steps to assist the employee before dismissal. This could include putting an employee on a performance improvement plan. These plans include training and oversight. If, after this, they haven’t improved withing the agreed timeframe, you may consider dismissal.

Probationary periods can usually help avoid these scenarios. They set clear targets for new members of staff to meet before they’re confirmed in the role.

Capability dismissal becomes more difficult when they individual is struggling due to medical reasons. If this condition is a disability, you could face a discrimination claim through an employment tribunal. To prevent dismissal, make any reasonable adjustments necessary, both this includes support for both physical and mental health conditions. Only if all support has been provided and unsuccessful should you consider terminating the employee.

Redundancy

Redundancy is where a job role is no longer required by a company. This can happen when a department is closing, or when cutting costs during a crisis.

Whatever the reason, remember that a genuine redundancy means the role no longer exists. That means you can’t dismiss someone for redundancy and then hire someone else to fill their role. This includes jobs that are clearly similar to the position  you’ve made redundant. In either case, it could result in a tribunal claim.

To proceed with a redundancy, you will need to establish a clear business case for why it is necessary. Part of this is showing that you’ve considered alternatives to it. Use a fair selection process that focuses on non-discriminatory criteria. This criterion could include experience, skills and a disciplinary record.

You will need to consult with the affected staff regardless of the numbers involved but if the employer is proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less, this will trigger collective consultation requirements. Making large numbers of staff redundant can be time-consuming and complicated. If you are unsure of the best procedure to follow, find further advice here.

Statutory restriction

This is where a member of staff is unable to continue working in their position without contravening a statutory restriction.

For example, if an employee works as a driver, they should be able to drive. If they lose their driving licence (for example) they may not be able to fulfil their role and could be dismissed. However, you have to prove that driving is essential to their role and that they can't be given other tasks.

Dismissal for some other substantial reason (SOSR)

This term may sound vague (and it is) but that’s deliberate. SOSR is essentially a catch-all term that applies where an individual’s employment cannot continue but doesn’t fit into any of the other four reasons.

The issue with this term is that it can be open to interpretation. Perhaps the most common example of this reason being used however, is reputational damage.

This is where the continued employment of an individual could result in your organisation losing business.

This might apply if an individual is arrested, for example. If their arrest appeared on the news, you might be able to dismiss them due to the impact of your association with the employee. Typically, tribunals tend to deem these dismissal fair, however this will depend on the circumstances, the type of role, type of business etc. Also, you will still need to follow a fair procedure.

Dismissals due to SOSR will always be fact specific, so be careful. Seek extra support if you’re struggling.

Get expert support on fair dismissal

Whether your dealing with an immediate issue that can potentially result in the dismissal of an employee or you want to ensure that you ensure fair process for future reference, you can get 24/7 advice from our expert HR advisory team. Call Croner today on 01455 858 132.