Dismissal Procedure Advice

Letting a member of staff go is not a pleasant part of running a business. It can be expensive, time-consuming and stressful – it’s only natural that most employers want to avoid it. In much the same way as you would only resort to formal disciplinary action based on the ACAS code of practice if informal methods haven’t worked, so dismissal should be an absolute last resort.

We’ll help you to try and avoid dismissals in the first place. Our HR consultants are on hand 24/7 to help prioritise positive steps – like performance management, reviews, training and employee support programmes.

If the worst happens and you find yourself facing a tribunal claim, we’ll support you there too, thanks to our dedicated employment tribunals team. Plus, providing you’ve followed all of our advice, we’ll even cover your legal costs.

What is ‘termination of employment?’

This is when an employee decides to leave their role and your business and this can be voluntary on their part, or could be decided by the employer.

You might know the term ‘termination of employment’ as another term such as laid off, fired, let go etc.

The reason an employee might have to end their contract could be down to;

• A breach of contract
• Potentially fair reasons for dismissal
• Gross misconduct
• Failing probationary periods
• Not reaching the required standards
• In the best interest of the company

What is a fair dismissal procedure in the UK?

Before you can consider dismissing an employee, you must follow a fair dismissal process. Here are the eight fundamental considerations to follow:

1. Keep written records throughout the process, so you can evidence that you’ve followed a fair process.
2. Don’t base your dismissal on discriminatory grounds. This includes an employee’s age, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation and disability discrimination.
3. Hold your disciplinary review meeting as soon as is reasonably possible.
4. Before the disciplinary hearing, make sure you let the employee know – in a written statement – what the allegation against them is, and make them aware of any evidence against them and possible consequences. Also inform them of the date, time and venue of the meeting so the individual has time to assess the situation.
5. Make sure you give the employee their right to be accompanied during the disciplinary meeting.
6. In the meeting, let the employee put their case forward, respond to any allegations, ask questions and present their own evidence.
7. Take action appropriate to the allegation on the back of the disciplinary meeting – this could be a verbal warning, final written warning or dismissal.
8. Allow employees to appeal your decision if they think it’s unfair – they have this right regardless of the decision or case and make sure someone more senior than the person who made the original decision deals with the appeal promptly and impartially.

For an in-depth look at how to dismiss someone legally, check out our free guide on it here.

What is unfair/discriminatory dismissal?

Every employee with two or more years’ service (or one years’ service in Northern Ireland) has the right to not be unfairly dismissed. Examples of unfair dismissal include:

• Making someone redundant without consultation or due process
• Dismissing for poor performance without any formal warnings first
• Dismissing someone who’s been off sick for a long time without getting a medical opinion as to whether they’re fit to return to work
• Dismissing someone ‘on the spot’ when they’ve been accused of stealing
• Refusing to accept an employee who’s due to transfer under TUPE

Additionally, all employees – regardless of their length of service – have the right not to be dismissed for certain reasons, otherwise known as ‘automatically unfair dismissal’. Examples include dismissals related to:

• Pregnancy/maternity status or leave
• Parental, paternity or adoption leave
• Pay and working hours
• Time off for jury leave
• Representation – i.e. if an employee acts as a representative for another employee
• Trade union membership
• Raising a complaint to an ombudsman or other bodies – i.e. whistleblowing

Dismissing an employee based on any of the above grounds could put you at risk of unfair dismissal claims, as well as constructive dismissal claims (when an employee claims they’ve been forced to walk out of their employment.)

Dismissing an employee during a probation period

In theory, dismissing employees who’re in their probation period should be easier. Why? Because employees with less than two years’ service can’t claim for ‘ordinary’ unfair dismissal. Also, if you’ve decided on extending the probation period with the employee, you’re on more solid ground if you decide to dismiss an employee for whatever reason.