Dismissing an employee

There are risks involved when dismissing an employee, which is why it is essential you have a valid reason, and you follow a fair procedure every step of the way.  There could be a number of reasons you may want to dismiss an employee for, but many may not be fair when it comes to abiding by employment law. If you are planning to dismiss an employee, please seek advice from an HR expert first. You need to make sure you’re not discriminating against an employee or acting in a way that could land you in an unfair dismissal case at an Employment Tribunal.

Some of the acceptable reasons for dismissal may be:

• They are causing problems – e.g. bullying, harassment, or discrimination
• Not being able to do their job properly or underperforming
• Violence, theft, vandalism (gross misconduct)
• Statutory restrictions – e.g. if a driver loses their license.  Even in these cases there is still a process that you MUST follow before handing an employee their P45.
• Redundancy (not covered in this article)

Disciplinary procedure – before you begin

Unless you’re dealing with gross misconduct, it’s very unlikely that you can jump straight to dismissal.

You must follow your disciplinary policy and procedure and give your employee warnings, as well as the opportunity to put things right (if applicable).

Please don’t be tempted to rush this process.  Whilst you may want the issue dealt with and the employee out of the business, take things too quickly and you could end up in a tribunal.

When you start to manage an issue with an employee you should take notes and keep a record of everything relating to that employee. This includes notes on their misconduct, performance, or other matters, and any evidence or investigation that you carry out to back up your accusation.

These written notes can be used as evidence that you’ve followed your procedure correctly, and that you’ve carried out a fair process while trying to avoid dismissal.

Ask yourself: “Why do I need to dismiss this employee?”  If you can’t simply explain the reason or evidence why, it’s possible that your motivation is unfair or even discriminatory.

It is absolutely vital that you’re not discriminating against any of the 9 protected characteristics, i.e., age, religion, gender, race, disability, sexual orientation, gender reassignment, marriage or civil partnerships, or pregnancy and maternity.

Remember that while an employee needs two or more years of continuous service to submit a claim for unfair dismissal, there is no minimum length of service needed if the reason is alleged discrimination.

The process

Before the meeting

You need to investigate and gather any evidence you feel is necessary, then you’ll need to arrange a disciplinary meeting.  Please remember this should be in private, away from other employees’ eyes and ears.

The employee should be invited to attend the disciplinary meeting, in writing.   This letter should include the time and date of the meeting, their right to be accompanied, and that dismissal could be a potential outcome of the meeting.  Outline the reasons for the meeting (allegations) and why dismissal is a consideration. You should also provide the evidence you have gathered as part of your investigation so that your employee has time to review it before the meeting.

At the meeting

Explain the allegations to your employee, go over the evidence from your investigation, and give them the opportunity to comment and respond to it all.

Have a note-taker present (if you are able) to allow you to give your full attention to the meeting. This person can also act as a witness on your behalf. If this is not possible you should take notes of the meeting yourself.  It is always useful to have a script to follow to make sure you cover everything you need to.

Once you’ve explained everything to your employee and given them suitable opportunity to respond.  You should then adjourn the meeting to give you adequate time to consider what they’ve told you and to make a final decision.

Let the employee now how long you intend to adjourn the meeting to consider your decision and when you will look to reconvene.   It could be later the same day, the next day, or even in a few days’ time.   Just make sure to keep your employee informed of when the outcome meeting will take place.

The outcome

Be consistent, consider how you’ve acted in the past if you’ve had a similar situation.  If you need to gather more evidence or investigate further, that’s ok, just let the employee know as soon as possible and notify them of the new meeting to review and consider the new evidence.

Whatever your decision, to dismiss the employee or to keep them, you need to be clear about your reasoning and inform them of what is expected. If you keep your employee this may involve for example, a performance improvement plan.

You must confirm the outcome in writing to the employee.   Remind them of their right to appeal and the date that this must be done by. If you are dismissing your employee, you will need to inform them of their last day of employment, pay arrangements including annual leave, and the return of any work property.

Remember, it’s never a nice process, whether it’s the first time or the 10th. However, taking the right time to carefully plan your disciplinary process and meetings will help to ensure you take all the correct steps and don’t act unreasonably at any stage. Failing to act fairly or without discrimination will have serious consequences for your business, so prepare well.

Overview – dos and don’ts checklist

Do

1. Have a valid reason for wanting to dismiss the employee
2. Make sure you are not discriminating against any of the 9 protected characteristics
3. Follow your own disciplinary policy
4. Give your employee adequate warnings before dismissal
5. Keep a written record of everything
6. Sufficiently investigate the matter before a disciplinary meeting
7. Keep your employee informed at each stage of the process
8. Give your employee sufficient opportunity to respond to allegations
9. Take reasonable time to consider the outcome
10. Follow everything up in writing
11. Allow for an appeal

Don’t

1. Discriminate
2. Rush through the disciplinary process
3. Skip any steps
4. Forget to take notes and have a witness in your meetings
5. Be swayed by an emotional reaction
6. Be inconsistent with your decisions
7. Give other employees too much detail on the situation
8. Act alone if you’re unsure of the correct protocol or employment laws