How to Dismiss Employees Safely
Letting people go is an area fraught with legal danger. Find out how to do it safely here
The vast majority of cases in the employment tribunal relate to dismissal; it is understandable to be nervous as a business owner if you are faced with dismissing an employee yourself.
However, as long as you act fairly and reasonably in dismissing an employee, and comply with clearly set-out procedural rules, you have little to fear. This article covers what you need to know in order to dismiss an employee safely, including what the ‘fair’ reasons for dismissal are, how to avoid unfair and wrongful dismissal, and how to handle a complaint of unfair dismissal.
How do I dismiss an employee for misconduct?
When dismissing an employee for some form of misconduct, it is even more important than usual to get it right. Employees will often feel especially aggrieved when they are fired for misconduct, and you need to ensure your conduct stands up to the closest scrutiny as they may well bring unfair dismissal proceedings against you. You need to have a dismissal procedure in place which sets out what should happen when someone is accused of misconduct, which means putting a system in place now well before something goes wrong.
Protect yourself by following these steps:
Before the misconduct
- Write down the rules. You need to write down reasonable rules for disciplining employees which are easy for staff to follow. These should cover what you consider to be an offence; what will happen if an offence is committed (your procedure should be in line with the ACAS Code of Practice), which offences in particular are deemed ‘gross misconduct’ and worthy of immediate dismissal, and how employees can represent themselves and appeal against decisions.
- Make the rules available. Make the rules easily available – on a staff noticeboard, for example – and explain them to all employees. Put a reference to the policy in staff employment contracts.
When misconduct occurs
- Conduct an investigation and disciplinary hearing. Your disciplinary and grievance policy should have rules in place that allow the employee the right to represent themselves at any hearing and be accompanied by a trade union representative or colleague – read more on this here.
- Consider whether warnings are appropriate. When an employee breaks the rules, it is normally appropriate to consider whether a quiet word or formal warning is appropriate in place of dismissing them, unless what they did is quite serious. You need to set time limits for how long the warnings will remain on the employee’s record for; spoken warnings normally last for six months, whilst final written warnings might last for a year or more. With any warning you give, you should set out steps to improve the behaviour in question, normally within set time limits. Make sure you apply the rules consistently and keep a record of all the warnings and punishments you give out, as these will be important evidence in your favour if an employee claims discrimination or unfair dismissal.
- Ask whether the behaviour was a ‘gross misconduct’ offence. Gross misconduct is behaviour so seriously dangerous or out of line that it would be impossible to allow the employee to keep working for you. Examples might include theft, fighting, drug use or reckless disregard for others’ safety. Most of the time you still need to follow the investigation and disciplinary process outlined in the Code of Conduct, although in very serious or dangerous cases you might be justified in dismissing someone on the spot.
After the dismissal
- Give the employee the right of appeal.
All employees have the right to appeal against disciplinary decisions. Generally, the person who deals with the appeal should not have been involved in your previous disciplinary process.
- Give the employee the proper notice period. Unless they are summarily (on-the-spot) dismissed, staff generally have a right to a period of notice. You may have written longer periods into an employees’ contract, but the minimum is one weeks’ notice if they have been with you longer than a month, two weeks’ if they have been with you for more than two years, and one additional week for each year of continuous service after that (up to a maximum of 12 weeks). It is normal to give sacked employees pay in lieu of notice.
- Give employees written reasons for dismissal. The law requires you to do this within 14 days of a written request from a member of staff who has been with you for more than two years, and whenever you dismiss an employee who is pregnant or on maternity leave, notwithstanding whether it has been asked for or how long she has worked.