Dismissal Procedures

DISMISSAL PROCEDURES

There have been many changes to employment law and regulations in the last few years. A key area is the freedom or lack of freedom to dismiss an employee.

An employee’s employment can be terminated at any time but unless the dismissal is fair the employer may be found guilty of unfair dismissal by an employment tribunal.

We set out below the main principles involved concerning the dismissal of employees. We have written this factsheet in an accessible and understandable way but some of the issues may be very complicated.

Professional advice is important before any action is taken.

THE RIGHT TO DISMISS EMPLOYEES

Reasons for a fair dismissal would include the following matters.

The person does not have the capability or qualification for the job (this requires the employer to go through consultation and/or disciplinary processes).
The employee behaves in an inappropriate manner (the terms and conditions of employment should refer to what would be unreasonable behaviour and the business must go through disciplinary procedures).
Redundancy providing it is a genuine redundancy with no suitable alternative work, there has been adequate consultation and there is no discrimination in for example, who is selected.
The dismissal is the effect of a legal process such as a driver who loses his right to drive (and the employer is expected to explore other possibilities such as looking for alternative work before dismissing the employee).
Some other substantial reason.

CLAIMS FOR UNFAIR DISMISSAL

After one year’s service employees can make a claim to an employment tribunal for unfair dismissal within three months of the date of the dismissal and if an employee can prove that he/she has been pressured to resign by the employer he/she has the same right to claim unfair dismissal.

If the employee proves his/her case the tribunal can come up with three remedies which are:

re-instatement which means getting back the old job on the old terms and conditions
re-engagement which would mean a different job with the same employer
compensation where the amount can be anything from a smallish sum to an unlimited amount if the dismissal was due to some form of discrimination.

If the dismissal is demonstrated as being due to any of the following it will be deemed to be unfair regardless of the length of service

discrimination for sex, race or disability
pregnancy, childbirth or maternity leave
refusing to opt out of the Working Time Regulations.

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GOOD DISCIPLINARY PROCEDURES

On many occasions a dismissal which seems quite justified to the employer will be found to have been unfair if correct disciplinary proceedings were not followed. ACAS (the Advisory, Conciliation and Arbitration Service) has developed a Code of Practice for Disciplinary Practice and Procedures and it is recommended that employers should follow this code.

In outline the procedure is as follows (the original is four pages long and can be obtained from ACAS on 020-7396-5100).

The terms and conditions of employment should refer to the disciplinary procedures and details of warnings must be written and put on file. The final warning should say that further occurrences of misconduct could lead to dismissal.
Further events would then lead to a formal investigation and the employee should be invited to a disciplinary hearing. The hearing should be documented and the employee be given every opportunity to put his/her side of the story. There should then be a break in the proceedings before any decision is taken on the individual’s employment.
The decision of the hearing should be communicated in writing together with an outline of the reasons for the decision taken and the employee should be told of a right to appeal.

We will be more than happy to provide you with assistance or any additional information required.

For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.

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