If an employee is found to have committed gross misconduct, you are within your rights to terminate their employment.
Even if you have all the evidence backing you up, this can still be a daunting task.
That's why we've put together a sample employee dismissal letter (with an example scenario) to help ease the stress of doing so.
What is dismissal?
Dismissal is when an employer ends their employee's employment contract.
Even though employees can be dismissed with immediate effect (in the event of gross misconduct), employers need to follow certain procedures to ensure that the dismissal isn't seen as an unfair dismissal.
Employers need to show that the employee breached their contract or committed an act of gross misconduct for it to be considered a fair dismissal.
Types of fair dismissal
Conduct is a broad term that covers a multitude of areas. Employers can consider this type of dismissal if the employee repeats offences, such as;
- Not following instructions from management repeatedly.
- Disclosing private company information.
If an employer needs to dismiss an employee, they need to remember to be fair. This means following a set procedure and investigating the allegations. The results of the investigation will determine whether the disciplinary procedure should go ahead or not.
This type of dismissal refers to the employee's capability to do the role. For example, if they don't have the ability, skills or qualifications to complete the role they were hired to do.
To dismiss an employee for capability, the employer needs to be able to prove two things.
- Why is the employee incapable of performing their role? Here an employer will need to look at the employee's performance against their job description.
- That the company has taken steps to help the employee.
Redundancy is when a job is no longer needed by the business. This could be down to the company downsizing, the closure of a department, or the business no longer needing that job completed.
Employers shouldn’t take an employee redundant and then hire someone else for the role. Redundancy means that the job is made redundant not the person.
A statutory breach is when an employee isn't able to continue working due to statutory restrictions. For example, if an employee is a driver, they need to be able to drive. It they can’t they will be unable to fulfil their role.
Some other substantial reason (SORS)
This term is vague but it's intentional. It's a catch-all term that applies when an employee's employment can't continue but doesn't fit into one of the above categories.
One of the main reasons used is reputational damage, where a business potentially loses business due to an employee's actions. For example, if they are arrested and appear on the news.
Dismissal in a probation period
Employers can dismiss an employee while they are on a probation period. If the reasons aren't automatically unfair, then the employee needs two years of service to make an unfair dismissal claim.
Types of unlawful dismissal
Some types of dismissal are considered to be unlawful and unfair. Employers should be aware of these, as they could result in the employer paying fines and compensation to the employee.
The definition of unfair dismissal is when an employer has no fair reason to dismiss the employee.
There are two types of unfair dismissal,
- a reason that an employment tribunal considers as "automatically unfair"
- dismissing an employee without a fair process.
Automatically unfair refers to when an employer violates an employee's statutory employment rights. For example, if an employer was to fire their employee for one of the following reasons, it would be considered automatically unfair.
- Pregnancy (or other maternity reasons)
- Membership to a trade union.
- If they are a whistleblower.
- Paternity leave.
- if an employee refuses to give up the right under the Working Time Regulations 1998. (for example, if they decide not to give up a rest break)
- If an employee exercises their right to receive the national minimum wage.
Wrongful dismissal is when the employer breaks the terms of the employment contract while they are dismissing an employee.
Other examples of wrongful dismissal include;
- Breaching contractual disciplinary procedures (for example, treating a small performance issue as gross misconduct).
- Breaching contractual redundancy
Constructive dismissal is when an aspect of an employee’s job role or working conditions are changed and results in the employee resigning from their role. For a constructive dismissal claim to make it to an employment tribunal, there needs to be a fundamental breach in either:
- The terms stated in the employment contract.
- The implied terms based on trust, and confidence in the employment relationship.
For a constructive dismissal claim to be valid, the employee must have resigned because of a serious breach, not for other reasons.
This template is provided ‘as is’ and Croner Group Ltd excludes all representations, warranties, obligations and liabilities in relation to the template to the maximum extent permitted by law.
Croner Group Ltd is not liable for any errors or omissions in the dismissal letters template and shall not be liable for any loss, injury or damage of any kind caused by its use. Use of the template is entirely at the risk of the user, and should you wish to do so than independent legal advice should be sought before use.
Use of the letter template will be deemed to constitute acceptance of the above terms.
Need expert support?
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