Dismissal

Dismissing fairly

Since October 2004, all employers must to set out their dismissal and disciplinary rules and the new minimum statutory procedures in writing. There are potential penalties for failing to issue these to employees, but more importantly, if you are contemplating dismissing an employee you must follow these procedures, otherwise you will automatically be found to have unfairly dismissed the employee.

The new statutory procedures must be followed when contemplating dismissing an employee for one of the following reasons:

• capability
• conduct
• redundancy - as long as there's no obligation to consult collectively
• non-renewal of a fixed-term contract
• compulsory retirement

Employers must follow the statutory procedures in these cases, regardless of their size or any other factors. In other cases, tribunals will continue to take into account other factors such as the size of the employer and whether the Acas Code of Practice on disciplinary and grievance procedures was followed. Download the Acas Code of Practice for disciplinary and grievance procedures from the Acas website (PDF).

Furthermore, to dismiss fairly, you must act reasonably, in how you decide to dismiss and how you carry out the dismissal.

Acting reasonably

Reasonableness is undefined. However, for alleged misconduct tribunals will probably consider whether the employer:

• genuinely believed the employee committed the offence
• had reasonable grounds for that belief
• carried out proper and reasonable investigations
• followed procedures 
• informed the employee of the allegations and listened to their views
• allowed the employee to be accompanied at the disciplinary hearing
• gave the employee the chance to appeal against the decision
• acted within the "band of reasonable responses" available in the circumstances

Reasonableness may also depend on whether the employee could be expected to understand the consequences of their behaviour.

Probationary periods

Special arrangements may be needed to deal with new employees still in their probationary periods. Quickly identify performance problems so action can be taken. If you decide to dismiss, you should do so within the first year of employment.

Subjects covered in this guide

• Introduction
• Types of dismissal and qualifying periods for tribunal claims
• Dismissing fairly
• Unfair reasons for dismissal
• Avoiding unfair dismissal and the consequences of getting it wrong
• Dismissals on performance grounds
• Dismissals on capability grounds
• Dismissals relating to industrial action
• Notice periods
• Final payments and other matters

 

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