Dismissing an employee must always be the last resort in any disciplinary matter but unfortunately sometimes dismissals are unavoidable. Where this is the case, not only is it important to ensure that you are aware of the law but also that correct procedures are followed to protect yourself from future litigation. It is very difficult to sack an employee immediately but by ensuring that proper procedures are followed an employer can save a great deal of money, stress and reputational damage.
Termination by notice
Most employment contracts will provide for a notice period by which a contract may be terminated by either party. Whatever the reason for termination, provided proper notice is given the contract will terminate with no liability for a breach of contract. However, this does not stop an employee from making a claim for unfair dismissal which is a statutory right rather than a contractual one.
A claim for unfair dismissal can be brought by an employee where no fair reason has been provided and/or where an employer has acted unreasonably. Only certain employees will be eligible to bring a claim for unfair dismissal and there are various factors that determine this. The important factor to keep in mind is that the employee must have been in continuous employment with the employer for at least 2 years (save for limited circumstances).
The fair reasons for dismissal are:
- Statutory illegality;
- Some other substantial reason (SOSR).
There are circumstances where an employer can dismiss an employee without notice. This is only where it can be shown that the employee’s conduct is a serious breach of their contract of employment. Examples of this might include theft from the employer, gross misconduct or negligence. What is important however, is to establish the seriousness of the breach by the employee which must be serious and fundamental to the contractual relationship.
Make sure you have implemented a fair procedure
Irrespective of the route taken to dismiss an employee, it is imperative that as an employer you protect your position should a disgruntled former employee decide to take legal action against you for his or her dismissal. It is important that as an employer you have a written disciplinary procedure and that this document is provided to all employees (normally in the form of an Employment Handbook).
In order to establish the facts before proceeding to a dismissal, you must ensure that you have objectively carried out necessary investigations without unreasonable delay. Ensure that all communication relating to the disciplinary action is well documented, make sure that any allegations that are put to the employee are clear and consistent from the outset and that the employee has the opportunity to answer the allegations. It is best practice to write to the employee so that they are clear on what they have done wrong and what the possible consequences are. You should also provide the employee with an opportunity to attend a disciplinary meeting so that they can answer the allegations and provide any evidence they may have in support of their actions. An employee will have the right to be accompanied to a disciplinary meeting by a third party (e.g. trade union representative or colleague) and they must also be provided with a right of appeal against any decision. At any of these meetings it is imperative that accurate notes are taken and that the employee is provided with a decision and the reasons for coming to that decision within a timely manner.
ACAS, the independent body set up by the UK government to assist with employee relations, provides a helpful best practice guide on conducting investigations leading to the possible dismissal employee and you can find this guide here.
Bindmans has a wealth of experience in advising both employees and employers in matters relating to dismissals and disciplinary actions so please get in touch if you would like more information.