We will work with you to identify any risks
These are decisions no business owner takes lightly, and Solutions for HR can provide you with the support to give you the confidence to deliver a successful outcome
Dismissals are complex but Solutions for HR understand that the most important thing for you is to do the right thing for your business.
There are often risks associated with dismissal, but we will ensure that your investigations are thorough, you have followed the correct procedures and that the sanction can be supported.
We will work with you to identify any risks or even provide options as alternatives to dismissal.
To read about the importance of thorough disciplinary investigation and how we helped click disciplinary investigation case study.
How can I dismiss an employee fairly?
Fair dismissal procedure
All employees have the right not to be unfairly dismissed when they have accrued 2 years continuous service.
Until that point, “normal” unfair dismissal rights don’t apply, although there are some circumstances where an employee doesn’t need this service entitlement to make a claim.
This happens when an employee is dismissed for matters including raising a whistleblowing compliant, a health and safety matter, carrying out trade union rep duties or exerting a statutory right such as flexible working or working time.
It is therefore vital that when considering dismissing, care is taken to the reasons behind the termination.
To fairly dismiss an employee, you must consider the following:
1. You must have a fair reason
There are potentially 5 fair reasons for dismissal in law. These are:
- Statutory illegality or breach of a statutory restriction – for example immigration status or a failure to hold a licence required by law
- Some Other Substantial Reason (SOSR)
2. You must act reasonably
This means carrying out a fair process.
There’s no legal definition of ‘reasonableness’, but the main considerations are that you:
- genuinely believe that the reason was fair
- carried out robust investigations where appropriate
- followed the relevant procedures for example ACAS codes of practice or company procedures
- kept accurate records of all investigations, meetings and evidence
- invited the employee to a meeting, in writing, providing all the relevant information for them to understand the reasons behind the meeting and potential dismissal
- engage in two-way communication, allowing the employee to speak, question and counter
- allow the employee to be accompanied at formal meetings
- consider statutory and contractual notice and payments
- give the employee the right of appeal
- DO NOT DISCRIMINATE
Where conduct or performance is the potentially fair reason, reasonableness might also depend on whether the employee could be expected to understand the consequences of their behaviour or performance.
Therefore, company policies and procedures are important along with written records setting out expectations.
Even if you think you’ve dismissed someone fairly, they could still claim unfair dismissal if they think that:
- the reason you gave for the dismissal was not the real one
- the reason was unfair
- you acted unreasonably, for example by failing to give them plenty of warning about their dismissal
Therefore, the procedure is vital.
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