Dismissing an employee is never an easy task, but it is often a necessary one. The process can be fraught with difficultly and become complex if not handled correctly. Get it wrong and you could find yourself in an Employment Tribunal. With the average award now reaching £13,749 and with the changes to the length of service an employee will need to have before being able to make a claim from 1 January 2027, missteps can be costly. It’s therefore essential that employers understand what a fair dismissal process looks like, what might be considered an unfair dismissal and what dismissal are considered to be automatically unfair.
What is a fair dismissal?
There are several key requirements to ensuring a fair dismissal process:
- Having a valid reason to dismiss
- Acting reasonably in the circumstances
What are valid reasons to dismiss?
There are five potential unfair reasons for dismissal:
- Conduct
- Capability – either in respect of ill health or performance in the role
- Redundancy
- Illegality – for example it would be illegal to continue to employ a driver as a driver if they lost their licence
- Some other substantial reason – this is the catch all category that employers may rely if none of the other reasons apply, for example a third party has requested an employee removal from site and there are no other suitable alternative vacancies for the employee.
Is having a valid reason to dismiss an employee enough?
In addition to having a valid reason for dismissal, an employer must also show that they have acted reasonably in the circumstances.
There aren’t any hard and fast rules as to the definition of ‘reasonableness’. However, an Employment Tribunal has to consider a number of factors which include:
- was there a proper investigation into the issues and were mitigating factors considered?
- was the employee informed of the concerns in writing?
- was the employee notified that dismissal was a potential outcome?
- was the employee advised of the reasons for their dismissal in writing?
- did the employee have the opportunity to respond to the allegations?
- was the employee advised of their right to be accompanied?
- was the employee given the opportunity to appeal the decision?
And that’s not all
In addition to the above factors a Tribunal will also look at whether the decision to dismiss fell within the band of reasonable responses.
It’s important to note that an Employment Tribunal cannot find that the decision to dismiss fell outside the band of reasonable responses because they would not have dismissed in the same circumstances. Instead, it has to consider what a hypothetical reasonable employer would have done in the same circumstances. A decision can be considered harsh, but still fair.
How to stay within the band of reasonable responses
- Be familiar with the law on unfair dismissal and the ACAS Code of Practice
- Make decisions based on evidence
- Be consistent with sanctions that have been given for similar offences in the past
- Ensure the penalty matches the offence – not the consequences of the offence
- Consider carefully any mitigating factors – long service, remorse or provocation
- Ensure you take and share notes of the meeting, get them agreed as accurate prior to taking the decision to dismiss
What makes a dismissal unfair?
A decision will be considered unfair if:
- The reason for dismissal did not fall under one of the valid reasons for dismissal
- The employer did not follow a fair disciplinary or dismissal process
- The decision to dismiss was outside the band of reasonable responses
What makes a decision automatically unfair?
There are some circumstances which will mean that a dismissal on those grounds is automatically unfair and no amount of fair procedure will change that. A dismissal will be considered to be automatically unfair where an employee has:
- sought to exercise a statutory right for example the right to take paternity leave or make a flexible working request
- made a protected disclosure (whistleblowing)
- refused to undertake work due to health and safety reasons
- participated in trade union activities including taking part in strike action or acting as an employee representative
In these cases, an employee can bring this claim from the first day of their employment – their length of service does not matter.
How to get dismissing an employee right
Dismissing an employee is often more complicated than anyone expects and therefore it’s critical that employers take advice before taking action.
Listen, take notes, be fair and allow the person their rights to be accompanied at the various stages. Ensure you maintain confidentiality, and that the employee retains their dignity throughout the process. Ensure that you keep accurate records of times and dates of the various meetings.
If they go off with stress after the first meeting, get advice prior to assuming that it is situational stress, and that you can continue without any detriment. It may be that they have a disability or a condition that they have not told you about, and you don’t want to add a discrimination claim to any potential claims.
The team at HRCentral can provide employers with advice, guidance and support to ensure that you act in accordance with best practice and the law, whilst balancing any practical considerations.
For support, please call us on 0118 324 2526 or email enquiries@hrcentral.co.uk
