With employer national insurance rates soon to increase, margins growing tighter and overall business costs rising, there’s likely a lot on your mind. In times like these, you’ll need everything in your company optimised – and this includes your staff.
They say one bad apple spoils the whole barrel, and the same can be true of an employee. Someone who is a bad fit could be a detriment to your team, performance, and entire business. If an employee continually fails to meet expectations, even after disciplinary action, then a dismissal may be necessary to keep your business safe.
With the looming proposed day one unfair dismissal right, it’s more important than ever to get dismissals correct. An unfair dismissal claim could not only tarnish your reputation but also be extremely expensive – costing thousands of pounds at the very least.
But fear not, there are five perfectly fair ways to make a dismissal:
1. Dismissing on conduct
You can fairly dismiss an employee for poor conduct. However, to do this it is important to clearly state what constitutes misconduct in your disciplinary policy. Don’t have a disciplinary policy? Talk to us.
There are generally two levels of negative conduct, and these should be handled proportionally.
Misconduct
Misconduct alone is a lower level and will require cumulative behaviour to lead to a fair dismissal. It typically includes poor attendance, unexplained absence or insubordination. In cases of misconduct, you’re required to provide a series of warnings before dismissal. Employees are also entitled to their full notice, or payment in lieu.
Gross misconduct
Gross misconduct acts are more serious instances of bad behaviour. This includes actions which have a serious impact on your business. For example, fraud, violence, gross negligence, bringing the company into disrepute or serious insubordination. A single incident of gross misconduct can warrant fair dismissal without any prior warnings, a required notice, or payment in lieu. But this is as long as the correct process, including a full investigation, was followed and any mitigating circumstances were considered.
In either case, you must act in accordance with your disciplinary policy for it to be fair.
2. Dismissing on capability
Capability is anything related to an employee’s skill, aptitude or health. Because they are not performing to the standards or attendance you need or expect, capability dismissals can be fair. To make a dismissal on capability grounds, you must follow the correct procedure to keep your business on the right side of the law.
Performance dismissal
For performance dismissals, start by implementing a formal performance improvement plan with achievable objectives. After regularly reviewing progress and providing extra training if required, you can give a series of warnings to improve. If nothing changes, you’re entitled to dismiss.
Health dismissal
An employee’s health can have a huge impact on their ability to work. While a good employer will want to find a solution, sometimes there is no viable way forward. Consult with the employee and their GP about their health and refer them to occupational health. If things still don’t improve, then a dismissal may be necessary.
Keep in mind, though, that if your employee’s illness amounts to a disability, then any recommended reasonable adjustments should be tried. Without this their dismissal could be considered unlawful disability discrimination – even if the dismissal is otherwise legally “fair”.
3. Redundancy
Redundancies can be fair reasons for dismissal: from business turn down and workplace closures, to simply no longer needing employees for a line of work. However, your redundancy selection must be fair and clearly signposted from the beginning of the process, including consultations and considerations of alternative work. It is an area where you really should seek professional advice, as it can get complicated and the stakes are high.
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.
4. Statutory illegality or breech of a statutory restriction
It’s fair to dismiss an employee if it becomes illegal or a statutory breach for them to continue working – simply because it becomes impossible to perform their role legally. Think: if your employee’s right to work in the UK expires, or if they lost their driving licence in a role they’re required to drive for.
5. Dismissing for some other substantial reason (SOSR)
Other reasons that could warrant a fair dismissal are covered by SOSR: situations involving a breakdown of trust or confidence between you and an employee. For example, if a client said they’d take their work elsewhere unless an employee was dismissed. These cases are subjective, so if you have one you’ll want to receive specialised advice to ensure its fair.
Get dedicated support
Having a fair reason for dismissal is only the beginning. To avoid unfair dismissal claims, you’ll have to implement it properly, following the ACAS code throughout the entire process.
At The HR Dept, we’re here to help you get dismissals right. We’ll provide specialised guidance at each stage – and be there to support you through any difficult conversations. Get in touch today to find out more.
