The Dismissal Process
For whatever reason(s) there comes a point when it will be necessary to dismiss a member of staff. This could be due to redundancy or as a result of a disciplinary issue. Whatever the reason behind the action, there is a requirement to follow a fair procedure and to be seen to be fair and totally professional in the decision making process.
- Probationary Periods
- Dismissing fairly
- Acting reasonably
- Dismissals on performance grounds
- Help and Advice
- Further Reading
With all new employees it is prudent to have a probationary period for the first few months of their employment for both parties to assess their respective suitability for the role. During this period it is common for the employment to be terminable by either party on short notice, quite often one week.
Employers should assess an employee's suitability during the probationary period and let them know how they are getting on. If the employee doesn't work out their employment could be terminated, or if the employer feels they have potential, the probationary period extended. Employers should always ensure that they do not extend the probationary period beyond 103 weeks so as to avoid employees obtaining the qualifying service for claims of unfair dismissal.
To dismiss an employee who qualifies for unfair dismissal protection (usually, but not always, because they have two year's service) fairly, the employer must first have a potentially fair reason for doing so. The potentially fair reasons include:
- Breach of a statutory enactment; or
- Some other substantial reason justifying dismissal
A statutory requirement which could prevent the employment continuing would be for example, a driver losing his licence. Employers must also act reasonably in how they carry out the dismissal. However, where the reason for dismissal is retirement, whether it is fair will depend on whether the employer has complied with the duty to consider working beyond retirement. Guidelines are available for you to consider from the ACAS website at www.acas.co.uk
Reasonableness is undefined. However, for alleged misconduct, tribunals will probably consider whether the employer:
- genuinely believed the employee committed the alleged misconduct
- had reasonable grounds for that belief
- carried out proper and reasonable investigations into the alleged misconduct
- followed their own disciplinary or other appropriate procedures
- had a disciplinary procedure which broadly was equivalent to the ACAS Code of Practice on Disciplinary and Grievance Issues when dealing with disciplinary issues
- informed the employee of the allegations and listened to their views
- allowed the employee to be accompanied at the disciplinary hearing by a colleague or trade union official
- gave the employee the chance to appeal against the decision
- acted within the 'band of reasonable responses' available in the circumstances
Reasonableness may also depend on whether the employee could be expected to understand the consequences of their behaviour.
Dismissals on performance grounds
Sometimes an employee's performance at work may be below the standard expected. Employers should follow these procedures to ensure reduce the risk of any dismissals being held to be unfair:
- pursue informal action - determine the facts and whether the performance can be helped, e.g. by offering counselling, training etc
- if there is no or insufficient improvement, pursue formal action - hold a disciplinary meeting. Present the reasons and the nature of the performance issue and offer an allotted time for the employee to improve. Warn that failure to improve will result in a first written warning. Keep a note of the meeting and copy it to the employee
- if there is still no (or insufficient) improvement during the allotted time, hold a second meeting, reiterate the complaints and give the employee a chance to explain. If there is no satisfactory explanation, issue a first written warning, detailing the complaint and the actions and timescales in which the employee must resolve the problem. Keep notes of the meeting and copies of the warning
- after the time given has elapsed and there is still no or insufficient improvement, issue a final written warning, again recording what happened at the meeting and setting targets and reasonable time for improvement. Warn that if there is no improvement, dismissal will be considered
- if the employee still fails to improve to an acceptable level and dismissal is being contemplated, again hold a formal meeting and allow the employee to be accompanied to the meeting by a colleague or trade union representative. At the meeting listen and consider any representations and in the absence of mitigation consider whether dismissal is the appropriate sanction. If it is, communicate this to the employee and confirm in writing. The employee would be entitled to their notice period or to payment in lieu of notice. The employee should also be given the right of appeal
Help and Advice
Disciplinary processes, especially where there are grounds for dismissal can sometimes be similar to stepping into a minefield. If you don't have the benefit of an HR department, there can be huge risks by taking this road alone. Pure Employment Law are offering users of the Transport's Friend website free initial advice. You can contact us on 01243 836840 or visit our website www.pureemploymentlaw.co.uk
For further information relating to the Dismissal process, please use the links below for further guidance.