10 Jul 2020
Removing staff from your company can be challenging. if you get it wrong it can be very costly for your business.
Staff with at least two years of service can bring tribunal claims for unfair dismissal. However, any employee can bring a claim if they feel they have been discriminated against.
Of course, if you own a business, chances are you will face this situation at some point. So, when can you lawfully dismiss your employees?
The Five Fair Reasons for Dismissal
One potentially fair reason to dismiss an employee is for their conduct whilst at work. Conduct is a broad term, so let’s break it down. 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 dismissal, such as:
- Drug abuse in the workplace
If you dismiss a staff member for misconduct, it’s crucial that you follow fair procedure. This is particularly important if they have at least two years’ service with the company. So, before you jump straight to a dismissal, you need to distinguish between misconduct and gross misconduct. The latter is likely to result in a dismissal. However, the former may only require a warning.
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.
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, regardless of measures put in place to help them.
To dismiss someone for capability, you’ll need to demonstrate two things:
- Why the employee is incapable of performing their role
- 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, you may consider dismissal.
Probationary periods 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.
To avoid this, you should consider any reasonable adjustments that can be made. That includes physical and mental support. Only when you can clearly show that you have tried to help the employee’s situation, and why this has not worked, should you consider capability dismissal.
This arises when there is no longer any requirement by the company for a member of staff to conduct their role. There are numerous examples of how this can happen. It may be that a department is closing. Or, you might scale jobs back as a way of cutting costs due to the coronavirus 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 one 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 includes experience, skills and a disciplinary record.
You may also have to implement a consultation process. This happens when you are making 19 staff (or more) redundant.
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.
4. Statutory restriction
This is where a member of staff is unable to continue working in their position without contravening a statutory restriction.
What does this mean? A good example would be that of a driver. If you individual worked for you as a driver, you’d reasonably expect them to be able to drive. However, if they were banned from driving, they would no longer be able to fulfil their role. As they can longer perform their role, you may be able to dismiss them fairly. However, in this scenario, you would need to prove that driving was crucial to their role and they could not be given other tasks to do.
5. Some other substantial reason (SOSR)
This term may sound vague—and it is—but that’s deliberate. It’s essentially a catch-all term. SOSR will apply 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, but only when the criminal act is severe.
Dismissals due to SOSR will always be fact specific, so be careful. Seek extra support if you’re struggling.
If you want to dismiss and employee but aren’t sure if the reason is fair, or you know the reason is fair but aren’t sure how to go about dismissing them, the get 24/7 advice from our expert HR team by calling 01455 858 132 today.
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