Dismissing an employee

How do you dismiss fairly?
 

• A fair reason for dismissal and

• Act reasonably when conducting a disciplinary investigation or hearing and when deciding whether dismissal for that reason is justified.

The law of unfair dismissal is concerned with whether the individual employer acted reasonably in all the circumstances, and so there is no one-size-fits-all answer to every case. 
The dismissal must also be substantively fair, i.e. must not have been outside the "band of reasonable responses" for the employer to treat the misconduct or poor performance as grounds for dismissal.

Acas Code of Practice
This is a useful tool which applies to disciplinary/poor performance issues. Tribunals must take its contents into account in the cases they hear.  Employees cannot bring a claim solely on the grounds that you failed to follow it – but the fairness of a misconduct/poor performance dismissal will be judged by the standards set out in it. The party at fault in not following its recommendations could suffer an adjustment of up to 25% in any compensation awarded. 
 

Employment Tribunal Claims
These can be costly, irritating and time-consuming to deal with. By getting things right at the outset, you can minimise potential claims and ensure that you have a greater chance of success with those which do arise.
There are many claims which can be made to an Employment Tribunal. The main one that we will focus on here is Unfair Dismissal.
 

Who can make a claim of unfair dismissal?
The right to bring a claim for unfair dismissal is available to an employee who has been dismissed and has the two years' qualifying period of service.
The qualifying period does not apply in most cases where the dismissal is for an automatically unfair reason (of which there are many!)  e.g. discrimination.

Discrimination claims
There are nine protected characteristics for which an employee can claim discrimination: 

• age; 
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity; 
• race;
• religion or belief;
• sex; 
• sexual orientation

Often when an employee does not have the required length of service they may attempt to incorporate a discrimination element into their claim. This is why managers must be aware of the potential for discrimination claims.

Is a dismissal Fair or Unfair? 
In order for an Employment Tribunal to decide if a dismissal is fair or not, there are two stages. 

1.The employer must establish the principal reason for the dismissal and demonstrate that it falls within one of the categories of potentially fair reasons in section 98 of the ERA 1996: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, or "some other substantial reason" (SOSR),.
An employer can have more than one reason for dismissal. However, both reasons would need to be pleaded and argued before the tribunal in order to succeed. It would be difficult for an employer to plead a reason that is different to the one given at the time of dismissal.

2. An employment tribunal must be satisfied that in all the circumstances the employer acted reasonably in treating the given reason or reasons as sufficient to justify dismissing the employee. Over time this has been interpreted by the courts as including a requirement that an employer adopt a fair procedure before taking the decision to dismiss.

This means that there must be fair, transparent and consistent application of a disciplinary procedure, where the employee:

•  is informed of the case against them,
•  has the opportunity to present their side of events at a hearing,
•  and has the right of appeal against dismissal. 

If you are contemplating dismissing an employee, it is advisable to seek legal advice at the outset to make sure you follow the correct procedure.  Contact us on 01827 317070 or employment@pickerings-solicitors.com