If you want to dismiss an employee, you must make sure that it is done fairly or – if they have been employed for two years or more – they may be able to claim unfair dismissal. If this is the case, as well as having a valid reason for the dismissal, you must follow the correct procedure.

What are the fair reasons for dismissing an employee?

Employees who have worked for you for two years or more are protected from unfair dismissal by the Employment Rights Act 1996. The five reasons for dismissing an employee which can be held to be fair are:

Misconduct

Misconduct can be general, serious or gross and could be something that was done outside of work.

If misconduct is general then written warnings should be used to try and stop the behaviour. Minor misconduct includes lateness and absenteeism.

Where gross misconduct has occurred, an employee can be dismissed straight away and without notice, known as summary dismissal. Examples of gross misconduct include discrimination, failing to follow instructions and theft.

Capability or performance

An employee may be unable to properly carry out their job or alternatively unwilling to carry it out properly.

If the issue is related to health or disability, then as their employer you should make any reasonable adjustments to help them, such as more time or adapted equipment. You could also consider whether a different role or part-time working might be helpful.

If the employee is simply failing to carry out their role then you should go through your disciplinary process to include giving warnings. Training can be offered where appropriate.

Where an employee’s performance is not acceptable, it is essential to go through the full disciplinary procedure before dismissing them.

Redundancy

If an employee’s position is no longer needed, you will want to make them redundant. The redundancy process is very specific and must be properly followed or they may have a claim against you.

You can make someone redundant for a genuine reason, such as if your business is closing or you have reduced work available.

There are strict procedures to go through when making redundancies, to include consultation and a fair selection process. For more information, see our article Avoiding claims when making redundancies.

Statutory illegality

Where someone would be breaking the law by working for you, you are entitled to dismiss them, although you must still follow a proper dismissal procedure. An example would be if you employed a driver who lost their driving licence.

Some other substantial reason

If there is another reason why you believe an employee should be dismissed and it is a substantial one, then you may be able to dismiss them fairly under this category. Examples include where two people do not get along and it is affecting your business, where there is a conflict of interest, such as where a staff member’s partner works for a competitor or where there has been a breakdown of trust and confidence between you and your employee.

What are the rules for dismissing an employee?

It is essential that the rules are followed when dismissing an employee to ensure that they cannot make a successful claim against you at an employment tribunal. You must genuinely believe that the reason for the dismissal is a fair one and you must go through the following:

• Carry out investigations into the situation
• Follow the proper dismissal procedure, either in accordance with your company handbook or by following the Acas Code of Practice on disciplinary and grievance procedures
• Notify the employee that they may be dismissed, explain why and give them a chance to respond
• Hold meetings or hearings and allow the employee to be accompanied
• Ensure the employee has a chance to appeal your decision

Dismissing an employee for poor performance

Dismissing an employee for poor performance may take time. It is important that dismissal should not come as a surprise to the employee and that a fair and transparent process is gone through before the dismissal itself.

The employee must be given a reasonable opportunity to improve. This means making sure that they are aware of the problem and what is expected of them. If necessary, they should be given extra training to help them achieve the desired standard.

Monitoring should take place, with performance targets and regular reviews. After each review, a meeting to discuss progress should take place with the employee. If there has not been sufficient improvement after a couple of review periods then written warnings can commence with a view to proceeding to dismissal.

It is important to keep evidence of the poor performance in case of an allegation of unfair dismissal.

Dismissing staff on furlough

Staff can be dismissed while on furlough provided that there are fair reasons for termination of employment. This could include redundancy or another substantial reason.

It is important to avoid making an employee redundant simply because they are on furlough, as this could constitute unfair dismissal. However, if there is not enough work for your employees then it is reasonable to make redundancies.

When calculating redundancy pay for a furloughed worker, this should be done with reference to their normal pay and not furlough pay.

Dismissing staff on zero-hours contract

If you have a worker on a zero-hours contract you can terminate their employment without notice if they are classed as a casual worker although it is good practice to give them a minimal period of notice.

A zero-hours staff member who cannot refuse the hours you give them is an employee rather than a casual worker. If your zero-hours staff member is classed as employee then they are entitled to a statutory notice and to go through the full dismissal process.

How our employment lawyers can help

At Springhouse Employment Solicitors we deal only with employment law meaning we have genuine expertise in the sector. We can ensure that if you do need to dismiss one or more employees, you are acting on the right grounds and following the correct procedures. We can protect you against costly mistakes.