Coming to a decision that an employee may need to be dismissed, can be very difficult. Then there’s the matter of managing the dismissal process, which can also be tricky, daunting and unpleasant for everyone involved. However, without careful planning, a dismissal can give an employee grounds to pursue complaints within the employment tribunal. Even if the employer has acted reasonably, there may be some circumstances when a dismissal is considered ‘automatically unfair’. Therefore, it’s critical that all employers understand the risks and sensitivity around the dismissal process.
Here are our five top tips for employers by Rabika Basran, employment solicitor at Gardner Leader, to consider when dealing with a potential dismissal to ensure it is fairly implemented and reduces the risk of future disputes:
The employer must have a valid and ‘fair’ reason
There are five statutory fair reasons for dismissing an employee, which are:
- Conduct
- Capability/performance
- Redundancy
- Breach of a statutory restriction/ statutory illegality
- Some other substantial reason (this can include breach of contract such as the implied contractual duty of trust and confidence)
As an employer, you may also need to consider from the start whether the circumstances leading to consideration of dismissal are so significant that it may be reasonable to suspend the employee pending an investigation. Ensure to review the contract of employment and staff handbook at an early stage to ensure there are no additional or unexpected obligations the employer would need to consider.
The potentially fair reason identified will lead to slightly different procedural steps, but for any process, investigations, meetings and a right to appeal is usually necessary.
Follow a fair, reasonable and consistent process
An employee can bring a claim for unfair dismissal even if there is a valid statutory ‘fair’ reason for dismissal, where there were procedural errors or the dismissal was not reasonable in “all of the circumstances”. Consistency and clarity throughout the process is therefore essential.
An employer may have a comprehensive disciplinary or capability procedure in place, usually set out in a staff handbook and this may be referred to in the employment contract. If not, it’s worth putting a process in place or at the very least, employers must follow the ACAS Code of Practice on disciplinary procedures to ensure that matters have been dealt with as fairly as possible.
All employees should be dealt with in a consistent manner, by imposing the same sanction for similar misconduct, for example. This can alleviate risks of potential discrimination arguments. Also ensure that the employee is aware of their right to be accompanied by either a colleague or a trade union representative where relevant.
Note taking and follow-ups are key
Before taking any formal action regarding the allegations, there should be a thorough investigation to check that there is sufficient evidence for disciplinary action or dismissal. The employee should be informed of the allegations and evidence, and then invited to a meeting to discuss.
It’s likely that they will be quite anxious or even angry at this point so, communication and maintaining transparency throughout the process is key. That way, both parties can deal with the matter as amicably as possible.
Keep notes of all communications whether these are contemporaneous notes or follow-ups by email, update the employee on timeframes for an investigation, and acknowledge them appropriately when they’re in touch.
Ultimately, think about how the employee would like to be treated and remain sensitive to the different reactions given the situation.
Once a decision has been made, clearly communicate this along with the reasons, confirm the right to appeal and reference earlier disciplinary action, where appropriate. Usually, a number of warnings would have been issued before it is fair to dismiss, for example, for performance reasons.
Overall, be prepared to keep an open mind throughout the process as what may at the outset appear to be gross misconduct, on investigation and discussion with the employee may lose its severity and not be sufficient to justify a dismissal for a first offence.
Offer a right to appeal
The employee may raise concerns throughout the process. It’s important to hear these and acknowledge them, taking steps to resolve where appropriate.
The final stage in any dismissal process will be to offer a right to raise an appeal about the decision taken due to the process. Done correctly, a good appeal process can mitigate the risks of any claims arising from earlier procedural issues. The employer may also need to make considerations for reasonable adjustments where an employee’s wellbeing or disability could affect their participation in the process.
Seek employment law advice early on, if needed
Dismissing an employee is never easy and many things can also arise that could potentially cause concern along the way.
If all goes horribly wrong, there may be other options to consider, such as a “protected conversation” and an offer of some compensation under a settlement agreement so if complicated issues do arise, it might be helpful to seek some preliminary advice from a solicitor or HR specialist.
Following these five tips is a good guide but if you’re in any doubt at any stage, seek professional help to guide through the process or address any unexpected challenges which could invertedly lead to an employment tribunal claim.
