24 Aug 2007


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Staff dismissal

While most of my staff are very hard working, there are a few I am concerned about and feel they don't pull their weight. Would it be fair to dismiss them and what recourse do they have?

At some stage, your business may face the difficult task of having to dismiss an employee or a group of employees.

Dismissal is serious and you need to be sure it's handled correctly. Effective recruitment, training and management from the start of employment will help you minimise the risk of poor performance, and therefore dismissal.

There are statutory procedures in force which apply to many dismissals.

If you are thinking of dismissing an employee, make sure you follow fair and proper procedures before taking any action to dismiss. When dismissals do become necessary there are steps you should take to avoid unfair, wrongful and constructive dismissal claims.

According to the website businesslink.gov.uk, summary dismissal – dismissal without notice or pay – can sometimes be justified if an employee's behaviour amounts to gross misconduct.

Notice Periods
The statutory minimum notice period is one week for employees with one month to two years' service.

For employees with two years' service or more, the entitlement is one week's notice per year of service up to a maximum of 12 weeks' notice. If a longer period of notice is specified in the employee's contract, then the longer period applies.

An employee should be paid their normal rate during the notice period even if they are on holiday, on sick or maternity leave, or if there is no work available.

The final payment to an employee must include

It is important to remember that if you dismiss an employee without giving the correct notice, that person may seek damages from an Industrial Tribunal.

Written reasons for dismissal
You do not have to give written reasons for dismissal unless the employee has been continuously employed for at least one year and requests them. They must then be given within 14 days of the request.

However, a woman dismissed while pregnant or on maternity leave must always be given written reasons.
The written reasons can also be used later at an employment tribunal as evidence, but failure to provide written reasons can lead to a tribunal award of two weeks' pay.

Grounds for fair dismissal
According to the Advisory, Conciliation and Arbitration Service (ACAS) a dismissal will be lawful provided it is for a fair reason and you have acted reasonably in all the circumstances.

The Employment Rights Act 1996 gives the right to employees with one year's continuous service or more not to be sacked without good reason. Since legislation is on the side of the employee it is up to the employer to justify his actions.

These reasons can include the employee being unable through lack of skill, aptitude, qualification or health to do the job or that their conduct is unacceptable.

Other substantial reasons can include that a that a legal requirement prevents the employee from doing the job, for instance where a driver loses his licence or redundancy or if a business needs to be changed.

Secondly, the law says you must act reasonably and this depends on the circumstances. You must give warnings to the employee; a formal oral warning, followed by a written warning and then a final written warning would be seen to be fair. The employee must also be given the opportunity to improve and where there is a problem you should suggest alternatives.

Unfair dismissal
Under statute it is unfair to dismiss an employee for:
• being pregnant or on maternity leave;
• reasons connected with the transfer of an undertaking from one employer to another, unless there are economic, technical or organisational reasons making workforce changes necessary;
• being a trade union member;
• refusing to become a trade union member;
• taking part in trade union activities;
• taking action on health and safety grounds, eg reporting a concern to a health and safety representative;
• seeking to enforce a statutory employment right, eg asking for a written statement of employment;
• failing to disclose a spent conviction.

The one year qualifying period for employees does not apply where the complaint is based on one of the above reasons, with the exception of the reason connected with the transfer of an undertaking.

Panel Piece
Advice on a grievance procedure should be given to the employee to allow for an appeal to be made. The Advisory, Conciliation and Arbitration Service (ACAS) has produced a helpful guide – the "Code of Practice on Disciplinary Practice and Procedures in Employment". Contact ACAS which is listed in the local telephone directory.

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