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Unfair Dismissal Checklist

How to deal with dismissals

An unfair dismissal claim can be a real headache for an employer, especially when it could have been avoided.

Before taking any steps to dismiss an employee, employers need to think about:

  • Having a fair reason for dismissal;
  • Following a fair procedure; and
  • Acting fairly and reasonably.

This checklist outlines the fair reasons for dismissal and gives some practical tips for following the right procedure.

What are the fair reasons for dismissal?
There are five potentially fair reasons for dismissal, these are; conduct, capability or qualifications, redundancy, illegality and some other substantial reason.

Conduct
Employers may choose to dismiss an employee whose conduct is unacceptable. In some cases, a pattern of behaviour may have evolved and resulted in an employee receiving a number of disciplinary warnings leading up to dismissal. In other cases, the conduct of the employee may be so serious that it amounts to gross misconduct and the employer decides to dismiss the employee summarily (i.e. without notice).

Practical considerations
Employees should understand what conduct will be deemed unacceptable behaviour. This should be contained within an employer’s disciplinary policy.

It is also good practice for employers to have a clear and consistent disciplinary policy, listing examples of conduct that will be deemed gross misconduct. Employers should make it clear that such a list is illustrative and not exhaustive.

Employers relying on conduct as a reason for dismissal must also ensure that they carry out a fair and thorough investigation. Failure to carry out an investigation is likely to result in a dismissal being unfair.

For more information on how to conduct a fair disciplinary process see our Disciplinary Checklist.

Capability or qualification
An employee’s lack of capability or qualifications to do their job is a potentially fair reason for dismissal.

Capability is assessed on the grounds of an employee’s skill, aptitude or health and the affect on their ability to fulfil their duties. Capability dismissals are usually for poor performance, intermittent and frequent short term absences or long term absences.

An employee may also be fairly dismissed for not having the required qualifications for their role. A qualification dismissal often happens when an employee loses their qualification e.g. driving licence, or where they are employed on the understanding they obtain a qualification and fail to do so.

Practical considerations

Poor performance – the employer must communicate the requirements of the role to the employee and how the employee’s performance is falling short of the required standard. Employees should also be informed of what improvement is required and the timescale for that improvement. The consequences of a failure to improve within that timescale must also be communicated. Employers must also consider any further assistance they can offer to an employee (e.g. additional training or supervision).

Short term absences – before dismissing review an employee’s pattern of absences and the reasons for them, (e.g. the employee is always off on a Monday or Friday). The employee should be warned of the required improvement.

Long term absence – before dismissing an employee on long-term absence, employers should obtain and consider up to date medical advice in relation to the employee’s condition and likely return to work. This can be obtained, (with the employee’s consent), from the employee’s GP or an occupational health specialist. Employers also need to consider whether the employee’s condition is a disability, whether any reasonable adjustments could be made to help an employee return to work and whether or not the employee’s job should be left open for longer or if there is more suitable alternative work.

For further information on dealing with absence please see our Absence Management Checklist.

Redundancy
An employee is dismissed on the grounds of redundancy if there is a closure of the business and/or the employer has a diminishing requirement for employees to carry out work of a particular kind. If the employer has a genuine redundancy situation this will be a fair reason for dismissal.

Practical considerations
Regardless of the number of redundancies being made, employers are required to consult with their employees prior to any dismissal. Where an employer is proposing to make 20 or more employees redundant over a 90-day period or less, the employer will also have to collectively consult with its employees.

Employers must ensure that they consult with employees about the selection criteria and ensure that the criteria are as objective as possible. If employers fail to consult with their employees and use criteria that are unreasonably subjective, it is unlikely that the dismissal will be fair.

For further information on how to deal with redundancies please see our Redundancy Checklists.

Illegality
Dismissing an employee because continuing to employ them would breach a statutory duty or restriction, is a fair reason for dismissal. Examples include where continued employment would breach the immigration rules or where the employee has lost their driving licence when they are employed as a driver.

Practical considerations
Employers should consider what statutory duties and/ or restrictions are relevant to their business and potential employees. Employers should carry out thorough checks before employing employees in a role that may be subject to statutory requirements.

Employers should also maintain records e.g. driving licence records and/or photocopies of the relevant documents proving an employee’s right to work (e.g. visa), to ensure they continue to comply with any relevant statutory duties and/or restrictions.

An employer should also consider whether there is any alternative to dismissing an employee. For example, if an employee has let their driving licence lapse, the employer may wish to consider suspending the employee without pay whilst the employee applies for another licence. An employer failing to consider alternative solutions will risk an unfair dismissal claim.

Some Other Substantial Reason
This is commonly referred to as “SOSR” and is essentially a catch-all category for employers to dismiss an employee, where the reason for dismissal does not fall under any of the above. Examples of SOSR include where there has been a severe clash of personalities or a breakdown in trust and confidence.

Practical considerations
Employers should carefully consider whether the SOSR is appropriate and could justify dismissal.

The reasonableness of an employer’s decision to dismiss for SOSR will very much depend on the circumstances of each case. Employers should be able to demonstrate that they have investigated matters and discussed the situation with the employee before dismissing them.

This note is a summary of the issues and is not a substitute for detailed legal advice. It may contain information of general interest about current legal topics, but it should not be taken as providing legal advice on any of the topics covered.

employment@dwf.co.uk

Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further