Removing staff from your company can be challenging. If you get it wrong it can be very costly for your business.
Staff with at least two years service can bring tribunal claims for unfair dismissal. However, any employee can bring a claim if they feel they have been discriminated against. Of course, if you own a business, chances are you will face this situation at some point. So, when can you lawfully dismiss an employee?
The Five Fair Reasons for Dismissal
1. Conduct
One potentially fair reason to dismiss an employee is for their conduct whilst at work. Conduct is a broad term, so let’s break it down. You might consider dismissal due to conduct for repeated minor offences. These include:
Disobeying instructions from management on numerous occasions.
Continually showing poor attendance.
Disclosing private company information.
However, there are one-off acts that could also be a cause for dismissal, such as:
Theft.
Violence.
Drug abuse in the workplace.
If you must dismiss an employee for misconduct, it's important to be fair. If they've been working with the company for two or more years, consider a warning instead of immediate dismissal. Gross misconduct usually requires dismissal, while minor misconduct may only require a warning.
To determine whether their conduct is serious enough to warrant a dismissal, you should follow fair procedure. This involves a full investigation into the allegations. If this finds that there is merit to the accusation, begin implementing your disciplinary procedure. Ensure your investigation takes into account all evidence gathered. You must also provide the accused employee an opportunity to defend themselves.
2. Capability
This type of dismissal arises when an employee doesn’t have the ability, skills, or qualification to do the role they were hired to do. This includes situations involving disability or illness, regardless of measures put in place to help them with their capability issue. To dismiss someone for capability, you’ll need to demonstrate two things:
Why the employee is incapable of performing their role against their job description.
Why no steps taken by the company can help them.
This means you should take all steps to assist the employee before dismissal. This could include putting an employee on a performance improvement plan. These plans include training and oversight. If, after this, they haven’t improved, you may consider dismissal.
Probationary periods usually help avoid these scenarios. They set clear targets for new members of staff to meet before they’re confirmed in the role.
Capability dismissal becomes more difficult when the individual is struggling due to medical reasons. If this condition is a disability, you could face a discrimination claim through an employment tribunal. To avoid dismissal, make any reasonable adjustments necessary, both physical and mental. Only if all support has been provided and has proved unsuccessful should you consider dismissing the employee.
3. Redundancy
A job role is no longer needed when a company no longer requires it. This can happen when a department is closing, or when cutting costs during a crisis. Whatever the reason, remember that a genuine redundancy means the role no longer exists. That means you can’t make someone redundant and then hire someone else to fill their role. This includes jobs that are clearly similar to the one you’ve made redundant. In either case, it could result in a tribunal claim.
To proceed with a redundancy, you will need to establish a clear business case for why it is necessary. Part of this is showing that you’ve considered alternatives to it. Use a fair selection process that focuses on non-discriminatory criteria. These criteria include experience, skills and disciplinary record. You may also have to implement a consultation process. This happens when you are making 19 staff (or more) redundant.
Making large numbers of staff redundant can be time-consuming and complicated. If you are unsure of the best procedure to follow, find further advice here.
4. Statutory Restriction
This is where a member of staff is unable to continue working in their position without contravening a statutory restriction. For example, if an employee works as a driver, they should be able to drive. If they can't, they may not be able to fulfil their role and could be dismissed. However, you have to prove that driving is essential to their role and that they can't be given other tasks.
5. Some Other Substantial Reason (SOSR)
This term may sound vague—and it is—but that’s deliberate. It’s essentially a catch-all term. SOSR will apply where an individual’s employment cannot continue but doesn’t fit into any of the other four reasons. The issue with this term is that it can be open to interpretation. Perhaps the most common example of this reason being used however, is reputational damage. This is where the continued employment of an individual could result in your organisation losing business. This might apply if an individual is arrested, for example. If their arrest appeared on the news, you might be able to dismiss them due to the impact of your association with the employee. Typically, tribunals tend to deem these dismissal fair, but only when the criminal act is severe. Dismissals due to SOSR will always be fact specific, so be careful. Seek extra support if you’re struggling.
Expert support
If you need support with employee productivity or conduct, speak to a Croner expert today on 0844 5618133 and quote code CHC22 along with quote number 911059.
Every FTC business member can also claim a free Croner goodie bag containing a mouse mat, pen, coaster and mug.
