The dismissal of an employee for a reason other than one allowed by law, without following a fair and reasonable procedure, may lead to a claim for unfair dismissal. Dismissing an employee without giving the required period of notice may lead to a wrongful dismissal claim. If the dismissal is for a discriminatory reason in law there may also be a discrimination claim. Compensation for successful unfair dismissal claims can be substantial and irrespective of whether a claim succeeds, the management time and legal costs spent in defending it may be significant and are not usually recoverable. Such time and costs can be avoided if you take the time to do things properly and thoroughly.
Dismissing an Employee Lawfully
In general terms, you must ensure that when considering dismissal of an employee you:
- Have a fair reason for dismissal, follow a fair procedure and act fairly and reasonably (so as to avoid an unfair dismissal allegation/claim).
- Comply with the terms of the employment contract, particularly as regards the employee's notice period (so as to avoid a wrongful dismissal allegation/claim).
- Do not discriminate unlawfully.
Employees are also entitled in some cases to written reasons for dismissal.
Even if you can pinpoint a lawful reason for dismissing an employee, the process for the dismissal must be handled fairly. Disciplinary and dismissal procedures, including the process of appeal, should be made known to staff upon commencement of employment, ideally by way of a disciplinary policy.
You may also have other relevant policies that employees should know about, such as a performance management policy and an illness and capability policy.
When dismissing an employee, you should inform them of the reason for doing so, which must be the real reason for dismissal. Where necessary, an investigation should be conducted to ensure that the facts are known before any decision is made, including a chance for the employee in question to provide their input.
Now that we have identified what a lawful dismissal is, and how employers should go about making one, the questions remain:
- What possible restrictions could employers face when making dismissals?
- What fair reasons are there for making a dismissal?
- What practical steps can employers take to reduce the risk of potential claims?
Employment Solicitor Neelam Afzal, answers all these questions and more in our latest webinar.
Enjoy the recording of the session below: