Dismissal

 

As an employer you may, for a number of reasons,  consider it necessary to  dismiss an employee. Many employers are concerned about the potential implications of terminating an employee and are particularly anxious about getting something wrong. However provided you follow basic procedures this will, in the vast majority of cases be a fairly straight forward process.

Employees with less than 2 year’s service

Employees do not have the right to bring a claim for unfair dismissal if they have been in your employment for less than 2 years.

If you consider that an individual is not performing to the required standard or is simply not working out, you can bring their employment to a close simply by advising the employee that you will be terminating their contract. This should, as a matter of good practice, be done through your Company’s disciplinary procedure with relevant written notification, along with the right to be accompanied at a disciplinary  meeting along with the right to appeal against any decision to dismiss.

Any employee whose employment is terminated would have the right to bring a claim for breach of contract, which is known as ‘wrongful dismissal’, so to avoid any such claim the employee must  be allowed to work their notice period or be paid in lieu of notice and be paid for any accrued but untaken holiday.

There are two important points to note:

  1. Be careful if you require an individual to work their notice period that the period of notice does not take them over one year of service.
  2. Make sure that the reason for termination has nothing to do with any ‘protected characteristic’ which could amount to unlawful discrimination. There is no qualification period for presenting a claim of unlawful discrimination.

Employees with more than 2 year’s service

In order to fairly dismiss an employee with more than one year of service you have to be sure that there is a fair reason for the dismissal – the most obvious being conduct or performance.

The process will differ slightly depending on the reason for dismissal. If an employee is failing to perform, every opportunity must be given to enable the employee to improve and it is strongly recommended that an individual is put on a Performance Improvement Plan to document their progress.

If you have concerns about the conduct of an employee this should be brought to their attention informally and noted on their personal file and, if they fail to improve then you can move to your formal process. In the case of gross misconduct, if there is any doubt at all as to whether the employee actually committed the alleged act, it is essential that you carry out an investigation into the matter before moving on to the disciplinary process.

You must follow your company's disciplinary process and document all meetings providing the employee with minutes as soon as possible. If you have any concerns as to whether your disciplinary process is legally compliant please do contact us before taking any action.

If you have followed your process and decide to dismiss the employee you must give the employee the right of appeal.

Of course diligently following the process does not guarantee that an ex employee will not lodge a claim with the tribunal but it will significantly strengthen your case if you have carefully followed a fair process and have the evidence to support your decision.

For specific advice on any individual circumstance or top tips on how to avoid potential liability contact Emplex 01753 583222.


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