Fair Dismissals
With the upcoming increase in employer national insurance rates, tighter margins, and rising overall business expenses, it’s understandable that you might have a lot on your plate. During such challenging times, optimising every aspect of your company is crucial—including your workforce.
The saying goes, “bad company corrupts good character,” and this can certainly apply to an employee. A poor fit can negatively impact your team’s performance and the overall health of your business. If an employee consistently fails to meet expectations, even after taking disciplinary measures, dismissal may be necessary to protect your company.
With the proposed introduction of day one unfair dismissal rights, it’s more critical than ever to ensure that dismissals are handled properly. An unfair dismissal claim could damage your reputation and lead to significant costs—potentially thousands of pounds.
However, there are five fair approaches to consider for a dismissal:
Dismissal Due to Conduct
Poor conduct can be a valid reason for fair dismissal. Clearly define what constitutes misconduct in your disciplinary policy. If you lack such a policy, reach out to me. By the way it is law that you should have a Disciplinary Policy.
There are two levels of misconduct, which should be addressed proportionally:
- Misconduct: This lower-level issue requires a series of warnings before dismissal and may include poor attendance, unexplained absences, or insubordination. Employees are entitled to their full notice or payment in lieu.
- Gross Misconduct: This involves serious breaches of conduct, such as fraud, violence, gross negligence, damaging the company’s reputation, or severe insubordination. A single occurrence can justify immediate dismissal without prior warnings, provided a thorough investigation is conducted, and mitigating factors are considered.
Dismissal Due to Capability
Capability dismissals relate to an employee’s skills, performance, or health. If an employee does not meet performance or attendance standards, it can be a fair reason for dismissal. Follow the proper procedures to remain compliant with the law.
- Performance Dismissal: Begin with a formal performance improvement plan, setting achievable goals. After regular progress reviews and additional training, if there’s no improvement, dismissal is justified.
- Health Dismissal: An employee’s health can greatly affect their work. While it’s essential to seek solutions, sometimes a dismissal is unavoidable. Always consult with the employee and their GP, and consider occupational health referrals. If conditions do not improve, dismissal may be required. However, if the illness qualifies as a disability, reasonable adjustments must be attempted to avoid unlawful discrimination.
Redundancy
Dismissals due to redundancy can be justified for reasons like business downturns, workplace closures, or a reduced need for employees in certain roles. Ensure that the redundancy selection process is transparent and includes consultations and consideration of alternative roles. Given the complexity of this area, professional guidance is advisable.
Be careful! In some cases, dismissal on grounds of a genuine redundancy situation could automatically be determined unfair – such as if you selected an employee because they’re pregnant. With greater protection rights for pregnant employees, it is imperative that you get the process right.
Statutory Illegality or Breach of a Statutory Restriction
Terminating an employee is considered fair if it is unlawful for them to continue in their position. Examples include the expiration of their legal right to work in the United Kingdom or the revocation of their driving licence when driving is a crucial requirement of their job.
Dismissal for Some Other Substantial Reason (SOSR)
SOSR includes valid dismissal reasons, such as a loss of trust or confidence between an employer and an employee or 3rd party removal. This typically occurs when a client, customer, or supplier demands the dismissal of an employee, and the employer faces a significant threat to their business if they do not comply. These situations can be subjective, so it is recommended to seek specialised advice to ensure fairness.
Ok so you have a fair reason for dismissal, however it is still imperative that you get the process right.
