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Sarah Everton from Employment Law team

Sarah Everton

Head of Employment Law

01782 525012 sarah.everton@myerssolicitors.co.uk


Dismissing an employee fairly: a refresher

8th March 2022

Dismissing an employee fairly: a refresher

The law gives five potentially fair reasons for dismissal The most commonly used reasons are redundancy, capability, and misconduct but in addition there is “breach of a statutory duty or restriction”, and “some other substantial reason capable of justifying dismissal”.

Even if your employee is guilty of misconduct or their job is clearly redundant, you still need to take care when dismissing. An employment tribunal will also decide if the dismissal was fair in all the circumstances.

As Sarah Everton, employment law expert with Myers & Co Solicitors in Stoke-on-Trent explains, it is crucial that employers follow the right steps to ensure dismissals are fair or the employee could bring a successful claim for unfair dismissal. Sarah highlights pitfalls to avoid and ways businesses can minimise risks.

Why is the procedure so important?

When deciding if it was fair and reasonable to dismiss the employee, employment tribunals examine the procedure followed by the employer. If the procedure is unfair, the dismissal is almost always unfair. What makes a procedure fair will vary depending on the reason for the dismissal.

If the tribunal finds that the dismissal was unfair, the tribunal may order that the employee should be allowed to come back to work. More commonly, tribunals award compensation to the employee.

When dismissing someone for misconduct or culpable poor performance, employers must follow the Acas code of practice on disciplinary and grievance procedures. If not, the tribunal may increase the employee’s compensation by up to 25%.

A fair process can also protect you from the employee resigning and claiming constructive unfair dismissal during the process. Procedural failings such as delays, an inadequate investigation and not giving the employee a clear picture of the allegations against them, can entitle the employee to resign and claim constructive dismissal.

When can an employee bring a claim?

Usually, employees only have the right to bring a claim for unfair dismissal once they have two years’ continuous service. However, from the first day of employment, employees are protected from dismissal for certain reasons.

Pitfalls to avoid

Even if the employee has less than two years’ service, they can still be protected from dismissal for a host of reasons. There are too many to list here, but these include reasons such as whistleblowing, taking time off for an antenatal appointment or trade union membership. Employees are also protected from a discriminatory dismissal for a reason related to a protected characteristic such as gender, ethnicity or sexual orientation.

If the employee has almost two years’ service, before dismissing make sure that you take notice periods into account. If you dismiss the employee without giving notice, one week’s statutory minimum notice can be added on to the date of dismissal. This may be enough to give them protection from unfair dismissal.

Employers are sometimes caught out where they assume an individual is a casual worker or contractor who does not have the right to bring a claim for unfair dismissal. After ending the working relationship with the individual, they may claim that they were in fact an employee and bring a claim.

How can I minimise risks?

Our Stoke on Trent solicitors can advise you on minimising risks and guide you through the dismissal process. Please contact Sarah Everton in the employment law team on 01782 525012 or email sarah.everton@myerssolicitors.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.