How Do I Legally Fire Someone?

11/07/2019

By Jane Johnson of JLJ Legal

We live in an instantaneous world: instant messaging, instant dating, even instant eating, so it’s understandable that, as an employer, you want your staff to hit the ground running so that you can have a productive and successful business.

But sometimes it’s all about the slow-burner: the shy, new hire who shows a lot of potential, or the grad who isn’t sure what they want to do yet and is looking for guidance. It is usually worth investing in your staff even if they don’t achieve immediate success, but sometimes there really is no option but to part ways.

When you fire someone, in legal terms it’s called “dismissing” them. If you don’t dismiss them properly and with a fair procedure, then the employee can bring a claim in the Employment Tribunal for Unfair Dismissal. In light of this, the employer needs to make sure that any dismissal is “fair”.

There are five potentially fair reasons to dismiss:

Conduct

This, as you would imagine, is to do with the employee’s conduct, either a one-off act of serious misconduct (gross misconduct) or a series of less serious misconduct. Examples of this may be repetitive late attendance, mild insubordination or being disruptive at work. Examples of gross misconduct may be violence at work, disclosure of confidential information, damaging the reputation of the employer or being dishonest.

Increasingly, employees posting stupid things on their social media accounts which can be linked to their employer and which damages its reputation, have been found to be gross misconduct by the Employment Tribunal.

It is always helpful to set out in the employment contract or handbook examples of gross misconduct and misconduct, so that employees know what is expected of them.

The key difference between a misconduct dismissal and a gross misconduct dismissal (apart from the shame!) is that an employee is not entitled to their notice pay for the latter. The employer can also dismiss without there being any previous warnings, whereas misconduct dismissals usually need previous warnings and a “live” warning on file.

Capability

This is defined as anything to do with an employee’s “skill, aptitude, health or any other physical or mental quality”. In practice this falls into two main groups – dismissal because of an employee’s poor performance or because of an employee’s ill health.

Employers will need to follow and fair and reasonable process.

To dismiss for performance, the employer must show that they have provided reasonable training and time to improve. There should usually be two warnings and two periods of attempting to improve before a dismissal would be considered fair. The employer must always bear in mind whether the employee has any medical condition or disability and seek relevant occupational health reports as well as making reasonable adjustments.

To dismiss for ill health, it depends whether the issue is persistent, short-term absence, or long-term absence and whether that person has a disability. If they do, the employer must always consider what reasonable adjustments can be put in place to facilitate the employee’s return to work.

Redundancy

In laymen’s terms, a redundancy situation can occur in the following situations:

  • Closure of a business
  • Closure of a workplace or branch
  • Reduction in a particular kind of work
  • General cost-cutting can also create a redundancy situation.

Once a genuine redundancy has been established, the employer needs to follow a fair process, including consulting with those at risk of redundancy and considering any alternatives proposed, and applying relevant selection criteria to score those people fairly. There is also a continuing obligation to provide information on any suitable vacancies within the business to those at risk of redundancy.

If there is a genuine redundancy and a fair process, then the dismissal will likely be fair.

Some Other Substantial Reason (SOSR)

SOSR is a “catch-all” provision that is technical and casesensitive. It is used in situations when the reason for dismissal doesn’t fall into the other defined reasons.

Examples of SOSR are a business restructure that doesn’t result in a redundancy situation and personality clashes between colleagues (provided the employer has taking reasonable steps to resolve matters such as mediation, changing working patterns etc. which have not been successful).

Statutory Restriction

This is when continued employment would be unlawful, such as the employee losing their right to work in the UK or failing to obtain certain qualifications that are essential to the role. 

Important points to note

The ACAS code applies to most dismissals and failure to follow it can result in a 25% increase to damages if an employee wins their case at the Employment Tribunal.

An employee must have two years’ service to qualify for protection from unfair dismissal, but this qualifying period does not apply in numerous cases, the most common being if the dismissal is discriminatory or because an employee “blew the whistle”.

If you are unsure whether an employee is working out, extend their probationary period for another couple of months and provide some more training.

Even if an employee resigns, they can still have a claim for unfair dismissal (called constructive unfair dismissal) if they can show that they employer treated them poorly and forced them into leaving.

Beware employment status! You may engage someone as a freelancer on paper but in reality they are a worker or even an employee. Protection under employment law relies largely on the day-to-day relationship between the parties, not just what the contract says. Self-employed people get very little protection under the law whereas employees get the full goldstar service.

This is an extremely broad area of law which has only been discussed in overview. You must always seek legal advice before taking any action. Remember, dismissal should only be used as a last resort.

Jane Johnson of JLJ Legal is an employment law solicitor with many years’ experience. She can advise you on all elements of employment law in relation to your business. Her website is www.jljlegal.co.uk and you can contact her on jane@jljlegal.co.uk

 

 

This article does not constitute legal advice.

The opinions expressed in the column above represent the author’s own.

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