How to dismiss an employee without breaking the law

How to dismiss an employee without breaking the law

Rachel Ramsay

Rachel Ramsay
9th July 2019

It’s never an easy situation for either employee or employer, but sadly, there may come a time when you need to part ways with a member of staff. Whatever the reason for their dismissal, you’ll need to ensure that you’re careful about following the appropriate procedures to make sure you stay on the right side of legislation designed to protect employees’ rights. In this article, I’ll look at how to dismiss someone legally and humanely.

The laws surrounding dismissing an employee and ending a contract

Employment law is complex, and many employers are understandably nervous about terminating an employee’s contract for fear of ending up in an employment tribunal. At its heart, the law requires employers to act fairly and reasonably towards an employee they’re dismissing, but what does this look like in practice?

First of all, it’s important to understand that there are different kinds of dismissal, and some are illegal and will give the employee grounds to take you to an employment tribunal. Types of dismissal include:

  • Fair dismissal – this is when there’s a valid reason for dismissing the employee; this includes reasons to do with their conduct, as well as redundancy or their inability to carry out the job they’re being paid for.
  • Unfair dismissal – when you dismiss someone without following a fair and reasonable process and without having a valid reason (or claiming a false or unfair reason). All reasons to do with parenthood are considered unfair, for example, such as firing someone because they become pregnant.
  • Summary dismissal – this means letting someone go immediately, without giving them notice or paying them in lieu of notice, usually because of gross misconduct (such as theft or fraud).
  • Constructive dismissal – this is when you’ve breached an employee’s contract and in doing so, forced them to resign. This might be because you’ve docked their salary without them agreeing to it, changed their working conditions or location, unfairly increased their workload or hours, or any number of other such reasons.
  • Wrongful dismissal – this when you’ve breached the employee’s contract in the process of firing them, for example by not giving them any notice.

At this point, it’s worth familiarising yourself with the unfair dismissal rule. This gives the legal reasons for which an employee can be fairly dismissed, which are to do with their capability, conduct, redundancy, a statutory requirement (they were employed illegally, for instance) or another substantial reason, such as a company restructure. Note that this rule doesn’t apply to workers who’ve been with you for less than two years, though you still need to follow a fair process.

You should make sure your disciplinary and dismissal procedures are written down (ideally in your employment contracts) and that employees have read them, so that there can be no doubt as to the processes you’ll follow and what employees have agreed to. Not doing so potentially leaves you open to being forced to pay compensation if you’re taken to an employment tribunal.

How to fire someone

As mentioned, employment law dictates that you must ‘act reasonably’ in dismissing an employee, and this means following a particular process – even if they’ve committed an act of gross misconduct and you feel a summary dismissal is appropriate. If an employee believes you haven’t been fair and reasonable, they could take you to an employment tribunal.

To make sure you’re covered, you should take steps such as:

  • Ensuring you have a valid reason – you’ll need one of the legal reasons outlined in the unfair dismissal rule
  • Conducting a thorough investigation into the circumstances surrounding any misconduct and making sure there’s sufficient evidence of any wrongdoing
  • Followed the procedures you’ve outlined in your disciplinary and dismissal policy
  • Kept the employee informed about why you’re considering dismissing them
  • Given the employee the chance to explain their side of the story
  • Given the employee the chance to improve if the issues relate to their performance; unless it’s gross misconduct, they shouldn’t be fired for a first offence
  • Let the employee have someone with them during any disciplinary hearings
  • Let the employee appeal once your decision has been made
  • Given the employee the correct notice period as outlined in their contract, or paid them in lieu of this notice period (this doesn’t apply if a fixed-term contract expires without being renewed, or in cases of gross misconduct)

Keeping the employee informed in writing is important. You can find template dismissal letters for each stage of the process by searching online. As part of acting reasonably, it’s helpful to go through a formal process to deal with any kind of discipline and grievance issues before this even turns into a firing situation. The ACAS Code of Practice on Discipline and Grievances sets out how to do this, and will be considered in any future employment tribunals.

Be human

Emotions understandably run high in these situations, as the loss of a job can have a hugely detrimental impact on an employee’s life. Regardless of the circumstances under which you and your employee are parting company – even if they’ve done something wrong, and even if they’re angry with you or you with them – it’s important to maintain courtesy and treat them with respect. You also have your brand reputation to uphold, so make sure you behave in accordance with your company values even during this most challenging of circumstances.

For some further reading around this subject, the Government sets out lots more information about dismissing employees.

You may also be interested in our recent guide on GDPR for small businesses.