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Dismissing fairly

To dismiss an employee fairly, you must first have a fair reason for doing so. The potentially fair reasons include:

  • conduct
  • retirement
  • capability
  • redundancy
  • a statutory requirement which could prevent the employment continuing - eg a driver losing their licence

If you want to dismiss someone for another reason, it could fall into the category of 'some other substantial reason', eg dismissal of an employee who was taken on as a temporary replacement for an employee on maternity leave. However, for such a dismissal to be fair, you must have told the replacement employee at the beginning of their employment that the job was only temporary.

In order for any dismissal to be fair, you must also in how you decide to dismiss and follow a procedure.

Acting reasonably

Reasonableness is undefined. However, tribunals will probably consider whether the employer:

  • genuinely believed that the reason for dismissal was a potentially fair one
  • had reasonable grounds for that belief
  • carried out proper and reasonable investigations where appropriate
  • followed procedures
  • told the employee why they were being considered for dismissal and listened to their views
  • allowed the employee to be accompanied at disciplinary/dismissal hearings
  • gave the employee the chance to appeal against the decision to dismiss
  • acted within the 'band of reasonable responses' available in the circumstances

Reasonableness may also depend on whether the employee could be expected to understand the consequences of their behaviour.

Dismissal and disciplinary procedures

All employers must set out their dismissal and disciplinary rules and procedures in writing.

An employment tribunal can order you to pay an employee compensation if you fail to do this and they succeed in an employment tribunal claim against you.

Any procedure should accord with the good-practice advice set out in the revised Acas code of practice on discipline and grievance. If you unreasonably fail to follow the code and the issue ends up at an employment tribunal, the tribunal could increase any compensation it awards the employee by up to 25 per cent.

Find the Acas code of practice for disciplinary and grievance procedures (April 2009) on the Acas website

Summary dismissals

Summary dismissal is the instant dismissal of an employee without notice or pay in lieu of notice - usually because they have committed an act of gross misconduct.

Tribunals have occasionally ruled that a summary dismissal was fair because the circumstances made an investigation unnecessary, eg where the employee engaged in serious misconduct in front of witnesses and there was no reasonable explanation for their actions or mitigating circumstances.

However, it's likely that a tribunal would rule a summary dismissal procedurally unfair and therefore it's not generally recommended. Instead you should suspend the employee on full pay and then investigate the circumstances.

If you feel that you have no choice but to instantly dismiss an employee, you must still comply with the appropriate SDDP - in this case, the two-step modified one. If you fail to do this, a tribunal will automatically rule that the dismissal was unfair even if it finds that your reason for the dismissal itself was fair.

Probationary periods

Special arrangements may be needed to deal with new employees still in their probationary periods. Quickly identify performance problems so action can be taken. If you decide to dismiss, you should do so within the first two years of employment.

Third-party pressure to dismiss

If a customer or client demands that an employee is dismissed because they don't want to deal with either the employee or the business that employs that employee, the dismissal may be fair. However, only an employment tribunal can determine whether or not such a dismissal is fair.

Note that a tribunal - when determining whether or not a dismissal is fair - cannot take into account pressure exerted by a trade union by the calling or threatening of industrial action.

However, where pressure is exerted on the employer to dismiss an employee because the employee is not a member of a trade union, a party exerting pressure can be joined by either the employer or the employee in proceedings before a tribunal and may be required by the tribunal to pay some or all of any compensation awarded.

This content is subject to Crown Copyright

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