How do I fire / Dismiss an employee?

Can I just dismiss them?  How do I dismiss?   Why can’t I dismiss someone?  I just want them gone.

These questions comes up a lot, as sometimes business owners think that they can just fire an employee.  They get so frustrated with an employee’s conduct or attitude, that they just want to get rid of them.  Unfortunately it isn’t that simple.  If you haven’t followed a fair process, then you could find yourself in a lot of trouble, plus it could damage your businesses reputation if you don’t treat people fairly.  You can’t just fire an employee, without following a fair and reasonable process.

There are 5 fair reasons for dismissal according to the Employment Rights Act 1996, which are:

Qualifications or capability

Redundancy

Conduct

Some other substantial reason

Statutory ban

The Acas Code of Practice is there to assist with the process for disciplinary and grievances for employers and employees.

In order for the employer to follow a fair process they should:

1   Establish facts

The employer must carry out an investigation to get as much information as they reasonably can, about their employee’s alleged misconduct or poor performance.  The employee is not entitled to a copy of the investigation notes at this stage, unless it proceeds to a disciplinary hearing.  Where the investigation shows the employee has a case to answer, the employer should ask them to a disciplinary meeting or ‘hearing’.

2   Employee should be informed of the issue in writing, and include:

sufficient information about the alleged misconduct or poor performance

possible consequences, for example a written warning

Copies of any investigation notes and statements

The employee should have this information in time to prepare for a disciplinary meeting.

3   Employee is allowed a companion / representative to the meeting, which is their statutory right.

There is a legal right for workers to be accompanied to grievance and disciplinary meetings.  This involves having a co-worker or trade union representative / official present of their choosing, should they wish to do so.

The companion is allowed to address the meeting by:

  • Sum up the case of the worker involved
  • Responding to the views expressed on behalf of the worker
  • Ability to confer during the meeting with the worker

The companion shouldn’t answer questions for the employee on their behalf.

4   Appropriate action should be decided

After following a fair disciplinary procedure, the employer should decide on the best outcome based on:

  • the findings from the investigation and meetings
  • what is fair and reasonable
  • what their workplace has done in any similar cases before

You may have your own version of what actions result in which level of disciplinary, which should be listed in your policies or employee handbook.

For a disciplinary outcome that doesn’t result in a dismissal, it’s a good idea for the employer to give the employee specific goals and timeframes for improvements.  The employee should be informed of the outcome in writing in a reasonable amount of time.

If the employee’s conduct or performance has not improved in the set timeframe, the employer should repeat the disciplinary procedure until improvements are made, or until dismissal is the only fair and reasonable option.

The employer might end the employee’s contract (‘dismissal’) in either of these cases:

Gross misconduct, or the disciplinary procedure has had to be repeated, and the employee previously had a final written warning.

Dismissal should only be decided by a manager who has the authority to do so. You can check your workplace’s policy on this.

The employee should be told as soon as possible:

  • the reasons for the dismissal
  • the date the employment contract will end
  • the notice period
  • their right of appeal

To avoid the risk of an ‘unfair dismissal’ claim, the employer should always follow a full and fair disciplinary procedure before deciding on dismissal.

 5   Employee offered the right to appeal

The employer should offer the employee the right of appeal.

This is so the employee can raise an appeal if they feel:

  • the outcome is too severe
  • any stage of the disciplinary procedure was wrong or unfair

What should I consider before taking any formal disciplinary action?

When considering any form of performance management or disciplinary action, you need to check what is in their contract, as some contracts may list the process that you need to follow.  If it isn’t listed in the contract, then check what your company policy is regarding dismissals and disciplinary processes, as a tribunal would expect you to have followed your own policies (as long as they are lawful in the first place), and the Acas code of practice.

You need to determine whether the issue is related to conduct or capability, as the next steps will be determined by this.  Can the issue be resolved informally?

Capability issues are when an employee is not meeting the standards expected of them by their employer.  An example of this might be lateness, unauthorised absence, not able to do the job due to illness etc…

When addressing capability, it is important to have an understanding on which of the three capability grounds the situation falls in to.  Dismissal on capability grounds falls in to one of the three reasons below:

  • Loss of or lack of a qualification essential for the job
  • Lack of skill or ability
  • Capability due to ill health

The flowchart below shows a suggested process based on the acas code of conduct.  If lack of capability is due to ill health, reasonable adjustments should be made.  The first step would be to have a conversation with the employee, and to agree a performance improvement plan, so that the employee fully understands what actions they need to take in order to meet the level expected, and what support can be provided by the employer to support them.  Dismissal would be a last resort.

Misconduct issues are related to someone’s behaviour or actions, where they have control over what is happening.  E.g. calling in sick when they aren’t really sick, unacceptable or improper behaviour, and company rules have been broken.

Gross Misconduct are serious breaches of conduct.  E.g. theft, fraud, negligence, alcohol consumption on duty, intimidating behaviour.

The flowchart below shows a suggested process for managing misconduct.  Following the acas code of practice in cases of gross misconduct is always recommended.

Summary Dismissal should only be used when it is a gross misconduct case, following a fair procedure as shown above, to ensure that it is lawful.  Acas provides a list of examples for gross misconduct cases, which are serious enough for a summary dismissal.

If you are having employee issues that you don’t know how to resolve them, and would like some support. Please do not hesitate to get in touch.

This blog is provided for information and general guidance purposes only, and does not constitute professional or legal advice.  Professional advice should be sought prior to any action being taken.  Every circumstance is different, so professional advice and support should be taken to confirm the appropriate course of action for your individual circumstances.

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