A simple guide to fairly dismissing an employee
Dismissing an employee can be tough for all parties involved. As a business owner, there are certain processes you need to follow to ensure the dismissal is fair. This Bionic guide will explain how to dismiss an employee in the correct way to help you avoid any confusion and issues during the process.
What does it mean to dismiss an employee?
A dismissal essentially means to end an employee’s contract. A dismissal can take effect with or without notice and there are a few different categories, depending on the reasons you have for firing your member of staff. A dismissal can also occur when an employee's fixed-term contract expires, and you, as the employer, choose not to renew it.
What are the different types of dismissal?
There are a few different types of dismissals and ideally, firing a staff member should be as a last resort. Always try to work out any problems with your employees or iron out issues before you decide to let them go.
But, if you’re left with no other option, the main categories of dismissal are; fair, unfair, summary, constructive and wrongful dismissals. You can find out how they differ below:
1. Fair dismissal
A fair dismissal is when an employer has a justifiable reason for firing a member of staff.
There are five main reasons for a fair dismissal:
- Poor staff conduct, such as constant lateness or bad work ethic
- Lacking qualifications for the job or being incapable of carrying out their role
- Redundancy, if you’re downsizing your team
- A legal restriction that changes the contract of their job. For example, if a delivery driver suddenly got a driving ban and could no longer drive
- Any other substantial reason, but it has to be proved as justified and fair
When an employee is dismissed fairly, it means you, as the employer, will have acted justifiably. There would be little to no grounds for your employee to argue otherwise.
2. Unfair dismissal
An unfair dismissal could arise if an employee has not been given a valid or justified reason for their firing. Unfair dismissal can also happen if you, as the employer, have not followed your own dismissals policy.
The world of unfair dismissals can be murky. An employee could argue unfair dismissal if they have joined a union and their rep is telling them they have grounds to fight. Unfair dismissal can also apply if your staff member feels like they were forced to retire at a certain age or if they requested flexible working and were fired as a result.
3. Summary dismissal
The next type of dismissal is a summary dismissal. This is where you dismiss an employee without notice. Gross misconduct cases usually make up a lot of summary dismissals. When an employee commits a serious act such they can be dismissed without serving their notice.
Summary dismissal is appropriate:
- If an employee committed theft or fraud
- If an employee damaged company property
- If they committed a serious breach of health & safety regulations or data protection (e.g.., if you ran a doctor’s surgery and an employee disclosed confidential patient information to others)
- If a staff member set up a rival business
- If they bullied, harassed or discriminated against another employee
4. Constructive dismissal
The next type of dismissal is constructive dismissal. This is when an employee feels they have to leave a job or feel “pushed out” due to the way other staff or their employer treats them.
Constructive dismissal can be another tricky one to prove. What one person considers 'pushing someone out’ can be relative and depends on individual thoughts and feelings. Each side would have to prove either way.
5. Wrongful dismissal
Next up is a wrongful dismissal. This is a little similar to unfair dismissal, but there are some subtle differences.
Wrongful dismissal is when it’s plainly obvious that you, as the employer, have breached the terms of an employee’s contract.
An example of this would be if your staff member was not asked to work the amount of notice stated in their contract or if they were fired due to their age, gender, sexuality or race.
How should you prepare for dismissing an employee?
No matter what the reason is, dismissing an employee can be stressful for you as a business owner. You might feel it’s a minefield to navigate employment laws and follow correct processes. But, to better prepare yourself, here are some helpful details that help make the process run that little bit smoother:
1. Clarify the grounds for termination
Firstly, you need to be clear on your reasons for dismissal. Whatever your reasons are, you need to be able to communicate them clearly and back them up with evidence. You don’t want to be accused of unfair or wrongful dismissal.
It’s a good idea to do some extensive research of your own to make sure the reasons you are using to dismiss an employee are valid and fair. If you’re able to, consult a lawyer or your legal department to check your decision. This will hopefully avoid you getting into a tricky situation.
2. Find a suitable time and place
When you’ve collected your reasons and made sure you’re dismissing your staff member fairly, you need to decide on a time and place to speak to them.
Earlier on in the week is usually the best choice for an important meeting like this. Then your employee has time to let the news sink in and arrange their notice period. It also gives them a chance to consult their own lawyer should they need to.
When thinking about the setting for your conversation, make sure you have a private room to use so other employees don’t overhear
3. Prepare the necessary documents
Before the meeting, you need to make sure the termination of your employee’s contract is in writing. It’s also a good idea if you or a witness — should you have one — takes notes during the conversation too. This way, everyone will be clear on what is said, and you can refer back to it if necessary.
At the meeting, all important documents should be given to the employee. This includes the letter of termination, their references, and any financial agreement you might have with them, such as redundancy pay, if you are letting them go for that reason.
4. Consider what you need to say
You’ll need to think carefully about what you will say to your employee during the meeting. It might help to write it all down a few days before and learn the main points you want to get across. It’s important that you are clear and concise in your delivery. You don’t want them to leave the room feeling confused.
Above all, talk to your employee as a person. Remember they will have worries and concerns and you need to be mindful of the fact they are losing their job quite suddenly.
Whether it’s a fair dismissal or not, it might be quite traumatic news for them. Stay professional and outline the reasons you are dismissing them. Let them have a chance to speak but make sure they know your final decision, the reasons behind it and if they should work their notice or not.
Do you need to have an employee termination meeting?
Yes, you need to have an employee termination meeting to ensure you are following the correct process. This helps you avoid accusations of unfair or wrongful dismissal.
In the meeting, you need to go through everything with your staff member, so they are clear on; why they are being dismissed, how long they have to work their notice and the repercussions. For example, if you’re taking legal action if they have assaulted or harassed another member of staff or stolen company property.
How long should the meeting last?
There is no set time you have to hold the meeting, but keep in mind the things you need to say and the points you need to get across.
It might help to make a clear list of everything you need to cover in the meeting and work out timings before it commences. Also, make sure you factor in time for your staff member to speak and ask questions.
What is the employee dismissal process?
When dismissing someone, you must follow your own dismissal process. You have to be able to show a valid reason for letting someone go to avoid firing them unfairly. Here’s how to follow a dismissals process correctly.
1. Offer a comprehensive reason for dismissal
It's so important that you make sure the reasons for dismissal are legally valid. The government offers advice on what does and doesn’t qualify for dismissal and is guided by UK employment laws, so it’s wise to check that your reason fits in with their requirements.
You must show that your employee is not doing their job correctly or endangering colleagues, the business or customers.
2. Ensure that the employee knows that this decision is final
Although you must give your employee a chance to speak in the meeting you hold with them, you have to let them know that the dismissal decision is final.
You need to tell them when their employment contract will officially end; what their notice period is and if they are entitled to any money. Make sure you provide all these details in writing to give to your staff member.
3. Run through any remaining benefits and pay they may have
It’s important to let your employee know about any pay they are still entitled to, when their notice period ends and when their last paycheck will be. Remember to put all this in writing as proof. Sometimes it might be difficult for them to process what is happening in the meeting, so if they have all the details in front of them, they can read through everything at home.
4. Collect any company property that they’ll have to return
The next step is to collect any company property your employee has possession of. This might include items like a laptop, company car or a mobile phone. Company property covers everything you have given them to carry out their job with.
Who should be involved in dismissing an employee?
The only person who should be dismissing an employee is a manager or business owner who has the authority to do so. But there can be others present at the dismissal meeting if you wish.
- HR Manager — A HR representative could be useful if the employee is wanting to appeal the decision.
- Mediator — If needed, a mediator can be required by you or the employee to sit in on the meeting and check everyone is acting fairly.
- Witnesses — Again, a witness can be invited by you or the employee to witness what is being said. This will help avoid confusion. Witnesses can also take notes.
What are the legal risks of getting dismissals wrong?
Employees have certain legal rights and if you don’t take these into account, you can find yourself in hot water.
It’s so important to make sure you’re following the correct procedures. Otherwise, you could find yourself being sued or taken to court in an employment tribunal.
If an employment tribunal decides you dismissed an employee unfairly, they may order you to give the employee their job back, offer them a different role or even pay compensation.
Do you need to tell other members of staff?
After the dismissals meeting, you do need to notify other employees about the termination, so they know how the change will impact them.
Some workers may feel worried about their own jobs, so you need to address and be upfront about the situation. For example, if you were planning on making more redundancies then be clear about this. If the firing was a one-off because of gross misconduct, then this needs to be stated.
Be direct with your team about the expectations you have for them on how they handle their teammate leaving.
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