Q&A: Dismissing employees

Reviewed by Louise Paull, employment solicitor, LawBite


Q&A: Dismissing employees{{}}

Can I dismiss someone I took on just a few months ago?

Employees can't usually claim unfair dismissal unless they have worked for you for more than two years. However, you must be mindful of other claims for which there's no minimum period of service requirement, for example, discrimination, whistle-blowing or dismissal for asserting or trying to assert a statutory right. If the employee could have a basis for a claim other than unfair dismissal, you should comply with the statutory Acas Code of Practice when dismissing the employee.

Why do I need to follow the Acas Code of Practice?

It reduces the risk of increased compensation should the employee successfully bring a claim against you. If there doesn't appear to be any basis for a claim, you should still follow the minimum procedure. That means inviting the employee to a meeting to discuss the issues that are leading you to contemplate dismissal and offering the right of appeal if the outcome is dismissal. Following this procedure offers employers some protection should an employee have some basis of claim of which the employer was not aware at the time of dismissal.

What about an employee's statutory right to notice?

You must give the employee the notice specified in their contract or statutory minimum notice - whichever is greater. Statutory minimum notice is, essentially, one week for employees with less than 2 years’ service and it then increases by one week with each completed year of service, up to a maximum of 12 weeks for 12 years’ service or more. 

What can happen if I dismiss someone unfairly?

The employee can bring a claim of unfair dismissal in an employment tribunal if they have at least two years' continuous service. They can claim a 'basic award' linked to their age, gross weekly pay - subject to the statutory cap of £508 per week - and length of service.

They can also claim compensation for loss of earnings - which is capped at a maximum of either £83,682 or one year's gross pay, whichever is the lower - and reimbursement of fees which must be paid by the claimant when an employment tribunal case is presented. The cap will apply where the 'effective date of termination' (the date on which the employee's notice expires, where employment has been terminated with notice) or the date on which termination takes effect (where employment has been terminated without notice) is after 6 April 2018.

What is constructive dismissal?

An employee can resign and claim constructive dismissal if the employer's conduct constitutes a fundamental breach of contract. Reducing an employee's salary or hours of work without their consent is an example of conduct that is likely to constitute grounds for constructive dismissal.

What is wrongful dismissal?

Where dismissal breaches the terms of the employee's contract of employment. For example, when an employee is dismissed without being given the agreed period of notice.

What reasons would be deemed legal?

Potentially, fair reasons include conduct, ability, redundancy, contravention of a statutory duty or restriction or some other substantial reason. Note that the 'default retirement age' has been abolished. It is unlawful to compulsorily require an employee to retire unless it can be justified as "proportionate means to achieve a legitimate aim".

Can I sack a staff member on the spot?

Dismissal without notice is known as 'summary dismissal'. An employer can dismiss summarily if the employee has committed gross misconduct. However, even in instances of gross misconduct, you should carry out an investigation, possibly suspend the employee, and then follow the disciplinary procedure.

What if the standard of an employee's work simply isn't up to scratch?

Dismissal may be justifiable, but you must follow a formal process, which begins with telling the employee their work is unsatisfactory and informing them what they need to do to improve. You must give the employee the assistance they need, including training, and a reasonable time in which to improve. Employers are expected to have given employees an escalating series of warnings, for example, an informal warning followed by a written warning, followed by a final written warning, before dismissal.

When would dismissing an employee be deemed 'automatically unfair'?

Health and safety reasons; asserting or trying to assert a statutory right such as maternity leave or national minimum wage; whistle-blowing; performing functions as an employee representative on a TUPE transfer or collective redundancy; refusing to work on a Sunday in the case of a shop or betting worker. There are many more reasons.