Dismissing an employee

53This is a difficult thing to do for any manager. It is tough to confront someone and tell them you no longer require their services. Most managers will have feelings of guilt, concern about the staff member and their family, worry that they recruited the wrong person, did not manage them properly, could have avoided all this if only…………

The situation may be made more difficult to manage in many regions by legislation governing how the procedure should be carried out, potential for a tribunal, redundancy payments required.

Because this is a global website with visitors from almost every country in the world, it is not possible to give an exhaustive account of the relevant legislation in each country or region. Instead we would advise that you consult local experts or bodies in your region for specific information about relevant legislation.

We will include a short section on the legal issues surrounding dismissal as it relates to the United Kingdom, purely to illustrate the types of issues which should be considered. Please take specific advice about employment law in your own region.

United Kingdom legislation

Reasons for dismissal

There are a number of reasons for dismissal which may include;-

Conduct – poor behaviour, such as gross misconduct

Performance -Not being able to do the job properly. Such as failure to keep up with changes such as new technology, inability to work satisfactorily with your colleagues.

Illness– if a long-term illness makes it impossible for a person to do their job.

Redundancy –the role is no longer required, there is not enough work.

Summary dismissal –usually for ‘gross misconduct’

Statutory restriction – e.g. if a taxi driver loses their driving licence, and cannot legally drive.

It’s impossible to carry on employing staff – e.g. the business no longer exists

A substantial reason – this is a catch all “any other reason “e.g. unreasonable behaviour or someone is sent to prison

Types of Dismissal in the UK

Dismissal can be considered to be;-

  • Fair
  • Unfair
  • Constructive
  • Wrongful

Looking at the detail;-

  • Fair
  • Unfair-because of the reason for the dismissal, or how management acted during the process.
  • Constructive – an employee is effectively forced to resign because the company has breached their contract or made their position untenable, perhaps by effectively demoting them or reducing their salary.
  • Wrongful –where the correct process has not been followed, for example the correct notice period has not been given.

Employment Tribunal In the UK

If an employee thinks they have been treated unlawfully they can ask to use the grievance procedure. If that does not have an acceptable outcome, they can ask for an Employment Tribunal.

A claim or dispute by an employee on the grounds of pay, dismissal or discrimination can result in the employer having to attend an Employment Tribunal.

Discrimination could be on the grounds of age, race, religion, sex, disability, marital status, sexual orientation.

An Employment tribunal will make a decision about an employment dispute, having heard evidence from both sides.

Employers are unusually keen to avoid this procedure as it can be time consuming and therefore expensive. In addition there will be legal costs incurred, and they may be ordered to pay the employee compensation, which can be punitive.

Dismissal Procedure

In order to avoid the possibility of a Tribunal, employers will try to ensure they have the correct procedures in place and follow them.

This means they must have a fair reason for dismissal, and that the employer can demonstrate they have acted reasonably. It is good practice to comply with the company employment contract, as well as its written policies and procedures.

The employer should have a fair and reasonable disciplinary process in place, often set out in an employment manual.

This process will include an informal investigation, and several formal steps, including verbal and written warnings, before a dismissal.

The employee has the right to be informed in writing of the alleged issue, misconduct or non-performance, and given the time and the opportunity to defend themselves, and to be accompanied at meetings by a colleague or friend.

Everything must be recorded in writing, and advance written notice given of meetings.

The employee should be given time and training to address any performance issues, The employer should take any mitigating circumstances into account, and there should be an appeals procedure in place.

Outside the UK, do we need to follow all these steps?

This will depend on a number of factors, not least local employment law. Although the procedure discussed above is onerous, it may be good practice to instigate a similar process in the interests of fairness and humanity.

A transparent, written process ensures that employees know what is expected of them, where they are failing, and gives them the tools to correct their failure. They have the time and opportunity to get back on course, or accept the consequences.

Instant dismissal

Instant dismissal, or on the spot dismissal, should not be undertaken lightly. It is a very severe penalty and for legal and moral reasons the employer may need to be able to justify their actions. It is usually reserved for behaviour viewed as gross misconduct

Gross misconduct

Gross misconduct is usually defined as behaviour so inappropriate as to destroy the employer /employee relationship and so deserves instant dismissal without notice or payment in lieu of notice.

Gross misconduct could include behaviour likely to cause reputational damage, gross insubordination, intoxication, theft and dishonesty, sabotage, a serious health and safety breach, or offensive behaviour such as fighting, physical abuse, swearing.

Avoiding dismissal

There are some steps that can be taken to minimise risk of a dismissal being necessary.

  • Use regular performance management meetings to review performance and the factors around it, and deal with any issues that emerge.
  • Wherever possible, resolve problems by informal meetings.
  • Escalate to a more formal process if the problem is not resolved.
  • Review e-mails or memos you send to employees, to make sure they are not aggressive.
  • Keep records of e-mails, letters or meetings with employees that are relevant to their performance.
  • Use trial periods when recruiting. If you have concerns about a new employee, extend the trial period or dismiss them at the end of it.
  • Investigate claims made by or against employees before making a decision.
  • If the decision results in dismissal, follow the correct procedure.

As long as you ensure you have a fair reason for a dismissal, have come to a reasonable decision and have followed a fair procedure, you can be confident you have done the best you can in the circumstances, and can go ahead and dismiss an employee if necessary.