How to Dismiss Employees Safely

Letting people go is an area fraught with legal danger. Find out how to do it safely here

How to Dismiss Employees Safely

What special cases should I be aware of when dismissing employees?

There are many situations where an employment or dismissal situation is not so clear-cut, and it can be difficult to tell exactly where you stand. It is normally a good idea to take legal advice in these scenarios.

Particular situations you should be aware of:

  • Directors:The directors of your company may be both office-holders and employees. You can remove a director from office following the procedure outlined in your Articles of Association (or the Companies Act 2006), but they could still remain an employee. Additionally, employee directors have the same employment rights as other members of staff.
  • Strike action:You are not allowed to sack employees taking part in union-approved official industrial action, unless it has gone on for more than 12 weeks and you have taken ‘reasonable steps’ to resolve the dispute. You can, however, dismiss employees taking part in unofficial strikes.
  • Temporary replacements:If you have a worker who is off for a period, you can appoint a temporary replacement and safely dismiss them when the employee returns to work.

What happens if someone makes a claim of unfair dismissal?

Normally, an employee must raise a grievance with you before making a complaint to an employment tribunal. Deal with these seriously, because if you can nip trouble in the bud at this stage it could save you a lot of money and time later on.

If the employee then does make an employment tribunal claim, Acas will appoint a conciliator to try and resolve your dispute, although they cannot get involved without the consent of both parties.

It is normally a good idea to involve Acas, and try and reach an agreement with the employee before any tribunal hearing. There are two kinds of agreement which are legally binding:

  • COT3: This is an agreement reached with the participation of Acas
  • Settlement agreement: This is a written agreement reached after the employee has taken independent legal advice.

When an employee makes a complaint of unfair dismissal to a tribunal, you will be sent a response form, otherwise known as an ET3. You must complete and return this within 28 days if you want to contest the claim – otherwise you could lose the right to take part in the hearing.

Most of the time, you will not need to hire a specialist lawyer to defend yourself in a tribunal if you have done the dismissal by-the-book and can justify your actions. It should be a fairly simple procedure if you have all the paperwork and evidence to back up your side of the story, and you have conducted a reasonable investigation in the event of a dismissal for misconduct. However, if you think they have a valid claim, or the issues are more complex, seek out a specialist employment lawyer.

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