With all of the recent headlines regarding the dismissals and resignations within the White House, it seems topical to consider the laws in the UK and the risks of simply ‘firing’ an employee.
It is advisable for all UK employers to have a disciplinary procedure which should be followed prior to making the decision to dismiss a member of staff. This should be compliant with the basic principles of fairness which are outlined in the ACAS code of practice.
It is first essential that reasonable investigation is carried out into the misconduct for which an employee is being disciplined. This is part of a fair procedure and the employee should be fully informed as to the reasons, circumstances and background surrounding an issue. In some cases, in order to investigate properly, it might be necessary to suspend the employee whilst investigations are ongoing. However, this step should only be taken where suspension is specifically permitted within the contract of employment. If this occurs, the employee should be paid as normal whilst suspended.
If, as a result of the investigation, it is decided that a disciplinary hearing should take place, the employee should be informed of this in writing, with details as to the specific allegations against them; the date and time of the meeting and who can be brought as a companion.
At the disciplinary meeting, the employee should be advised of the information gathered during the investigation. Additionally, they should be given the opportunity to ask questions, present facts, bring and question witnesses and query any points which have been raised by witnesses.
After the meeting, there should be a decision made as to what the best and most reasonable outcome would be. The usual outcome for an employee who has never been involved in any misconduct previously, and where the misconduct or underperformance is not particularly serious, is a first written warning which should contain details of how long it will be in force for. However, if the misconduct or performance issues are sufficiently serious, a final written warning may be issued.
It is noted that in some circumstances where gross misconduct has occurred (such misconduct should be defined by the employer’s disciplinary procedure depending on the nature of work which the employer undertakes), written warnings of whichever level might not be suitable. Dismissal in this case can occur, but only when the disciplinary process has been followed.
If an employee feels that the disciplinary procedure followed or the outcome is not fair or reasonable, they may appeal the decision. The appeal should be dealt with by a different person or group of people to who investigated and decided the initial process, but should follow the same process.
When can an employer dismiss an employee?
In order to dismiss an employee, and avoid any potential litigation claims of unfair dismissal, it is fundamental that an employee is only dismissed where there is a potentially fair reason to do so. There are five potentially fair reasons for dismissing an employee and those are
- Conduct
- Capability or qualifications
- Redundancy
- Illegality
- Some other substantial reason which is not covered by the four categories above, such as a personality clash between colleagues which cannot be resolved.
However, even if at least one of the above circumstances has been met, an employer can only dismiss an employee in the following situations:
- When a fair and reasonable procedure has been adhered to;
- When the terms of the contract of employment have been followed, specifically with regards to the notice period that is required to have been given; and
- When an employee has not been discriminated against unlawfully.
In some circumstances it may be difficult to know whether a disciplinary procedure can fairly be invoked. For example, if an employee is charged with or convicted of a criminal offence, there are usually not automatic grounds for invoking the disciplinary procedure. It should be considered whether the offence has any effect on the position of the employee and their ability to do their job.
How to avoid a potential claim
There are a number of things that can be done in order to minimise the risk of a potential claim of unfair dismissal:
- Consider whether the issue can be resolved informally. Of course, in some cases this will not be feasible.
- All communications should be kept polite, fair and reasonable and a copy should be kept of any emails, notes, communications etc. where possible.
- Conduct appraisals on time and ensure that correct and honest information is given as to the performance of employees. Without this information, an employee cannot be expected to change their performance.
- If you use probationary periods for new employees, use these efficiently, i.e. if you have an employee who you have concerns about in their probation period, follow their contract of employment which should allow for extension of the probation period or dismissal.
- Never try to bully or harass an employee into resigning. This could result in a claim for constructive dismissal.
- If illness could be a reason for poor performance or misconduct, involve your HR department to gain advice and find out from your employee what/if any adjustments could be made to aid them to effectively do their work.
- Follow the procedure outlined above to ensure that there is a fair and reasonable disciplinary process put in place.
Whilst it seems that laws in the UK are stricter with regards to dismissal than in the US, this is to protect employees and ensure that a fair procedure has been put in place. In most circumstances, an employee will have the chance to improve/change their conduct or performance or explain their misconduct. Only in extremely rare cases will instant dismissal be justified – it is always advisable to follow a reasonable procedure. Additionally, an employee should not be forced to resign due to harassment or bullying as this would give rise to the potential of a claim for constructive dismissal. An employer therefore has to be very careful in the way it conducts dismissal of employees and cannot simply ‘fire’ someone in the manner of Donald Trump!
If you have any questions about misconduct and dismissal, or about unfair and constructive dismissal claims, or any other employment query, please contact a member of our specialist Employment Law team on 03330 430350.
