Dismissing Staff
Did you Know? Employees can only claim unfair dismissal if they’ve worked for a qualifying period - unless they’re claiming for an automatically unfair reason.
Dismissal is when you end an employee’s contract. When dismissing staff, you must do it fairly.
A dismissal is fair or unfair depending on:
You must have a valid reason for dismissing an employee. Valid reasons include:
Example:
You take on an employee to provide temporary maternity cover and dismiss them when the cover period ends. The dismissal is fair if you made it clear at the start of their placement that the job was only temporary.
Acting reasonably
Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.
There’s no legal definition of ‘reasonableness’, but if you’re taken to an employment or industrial tribunal they would consider whether you:
Dismissal and disciplinary procedures
You must set out your dismissal and disciplinary rules and procedures in writing - if you don’t, a tribunal can order you to pay an employee compensation.
How to dismiss someone
During the dismissal procedure, make sure you act fairly and reasonably. You must treat the employee with sensitivity.
Your procedure should follow the advice set out in the Acas (Advisory, Conciliation and Arbitration Service) code of practice, or the Labour Relations Agency (LRA) code of practice for Northern Ireland.
Download ‘Acas code of practice for disciplinary and grievance procedures’ (PDF, 1.9MB)
Download ‘LRA code of practice for disciplinary and grievance procedure’s (PDF, 1.2MB)
If you don’t follow the code and are taken to an employment or industrial tribunal, you may have to pay compensation.
Summary dismissal
This is when you dismiss someone instantly without notice or pay in lieu of notice, usually because of gross misconduct (eg theft, fraud, violence).
Tribunals may rule a summary dismissal as ‘procedurally unfair’ - you can only suspend someone without pay if their contract says you can do this. If it doesn’t, you should suspend the employee on full pay and investigate the circumstances.
If you feel summary dismissal’s your only choice, you must still follow a fair procedure as you would do for any other disciplinary matter.
Dismissals on capability or conduct grounds
If you want to dismiss someone, there’s no specific process you must go through by law, as long as you do it fairly.
If a capability issue is linked to someone’s health, you should try as many ways as possible to help them do their job (eg with reasonable adjustments) before dismissing them.
Disciplinary procedures
Different procedures are appropriate for different circumstances.
Employees have the right to be accompanied to all disciplinary meetings and to appeal to a manager. Keep notes of all meetings and give copies to the employee.
Misconduct
To make sure the dismissal is fair when misconduct isn’t ‘serious’ or ‘gross’:
Arrange a meeting with the employee, telling them the reason for it. At the meeting, give them a chance to explain and issue a first written warning if you’re not satisfied with their reasons. In the warning, tell them how you expect them to improve and over what period - warn them that if they don’t improve enough, you’ll give them a final written warning.
Hold a second meeting if their performance or behaviour hasn’t improved enough by the deadline - give them a chance to explain and issue a final written warning if you’re not satisfied with their reasons. Revise the action plan with timescales for improvement and warn them that you’ll consider dismissal if there’s no improvement.
Hold a third meeting if their performance or behaviour is still not up to standard by these new deadlines. Warn them that dismissal is now possible. After the meeting - or appeal if there is one - decide whether to give the employee a further chance to improve, or dismiss them. You must tell the employee of your final decision, whatever it is.
Serious misconduct
You can issue a single ‘first and final’ written warning if the misconduct or underperformance is serious enough. Explain that not improving could lead to dismissal. ‘Serious enough’ includes if it’s likely to or has caused serious harm to the organisation itself.
Gross misconduct
With gross misconduct, you can dismiss the employee immediately as long as you follow a fair procedure. You should investigate the incident and give the employee a chance to respond before deciding to dismiss.
You should have examples of what you consider to be gross misconduct in your disciplinary rules. This may include things like theft, physical violence, gross negligence or serious insubordination.
One-off incidents
An informal discussion may be enough to resolve the issue if the misconduct or underperformance was a one-off and the employee has a good disciplinary record.
Dismissals due to illness
Sometimes an employee may have to stop working because of long-term ill health. They may resign, or you may have to consider dismissing them. Dismissal due to illness is a last resort and you should consider as many ways as possible to help the employee back to work, including:
If the employee can’t do their job because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them, even if they’re disabled.
Unfair, Constructive and Wrongful dismissal
If you do not dismiss someone fairly, it may be classed as one of the following and you could risk industrial action being taken against your business:
Read more about Unfair, Constructive and Wrongful Dismissal...
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Did you Know? Employees can only claim unfair dismissal if they’ve worked for a qualifying period - unless they’re claiming for an automatically unfair reason.
Dismissal is when you end an employee’s contract. When dismissing staff, you must do it fairly.
A dismissal is fair or unfair depending on:
- your reason for it
- how you act during the dismissal process
You must have a valid reason for dismissing an employee. Valid reasons include:
- their capability or conduct
- redundancy
- something that prevents them from legally being able to do their job, eg a driver losing their driving licence.
Example:
You take on an employee to provide temporary maternity cover and dismiss them when the cover period ends. The dismissal is fair if you made it clear at the start of their placement that the job was only temporary.
Acting reasonably
Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.
There’s no legal definition of ‘reasonableness’, but if you’re taken to an employment or industrial tribunal they would consider whether you:
- genuinely believed that the reason was fair
- carried out proper investigations where appropriate
- followed the relevant procedures
- told the employee why they were being considered for dismissal and listened to their views (in Northern Ireland, the employer must do this in writing)
- allowed the employee to be accompanied at disciplinary/dismissal hearings
- gave the employee the chance to appeal
Dismissal and disciplinary procedures
You must set out your dismissal and disciplinary rules and procedures in writing - if you don’t, a tribunal can order you to pay an employee compensation.
How to dismiss someone
During the dismissal procedure, make sure you act fairly and reasonably. You must treat the employee with sensitivity.
Your procedure should follow the advice set out in the Acas (Advisory, Conciliation and Arbitration Service) code of practice, or the Labour Relations Agency (LRA) code of practice for Northern Ireland.
Download ‘Acas code of practice for disciplinary and grievance procedures’ (PDF, 1.9MB)
Download ‘LRA code of practice for disciplinary and grievance procedure’s (PDF, 1.2MB)
If you don’t follow the code and are taken to an employment or industrial tribunal, you may have to pay compensation.
Summary dismissal
This is when you dismiss someone instantly without notice or pay in lieu of notice, usually because of gross misconduct (eg theft, fraud, violence).
Tribunals may rule a summary dismissal as ‘procedurally unfair’ - you can only suspend someone without pay if their contract says you can do this. If it doesn’t, you should suspend the employee on full pay and investigate the circumstances.
If you feel summary dismissal’s your only choice, you must still follow a fair procedure as you would do for any other disciplinary matter.
Dismissals on capability or conduct grounds
- An employee can be dismissed if:
- they’re incapable of doing their job to the required standard
- they’re capable, but unwilling to do their job properly
- they’ve committed some form of misconduct
If you want to dismiss someone, there’s no specific process you must go through by law, as long as you do it fairly.
If a capability issue is linked to someone’s health, you should try as many ways as possible to help them do their job (eg with reasonable adjustments) before dismissing them.
Disciplinary procedures
Different procedures are appropriate for different circumstances.
Employees have the right to be accompanied to all disciplinary meetings and to appeal to a manager. Keep notes of all meetings and give copies to the employee.
Misconduct
To make sure the dismissal is fair when misconduct isn’t ‘serious’ or ‘gross’:
Arrange a meeting with the employee, telling them the reason for it. At the meeting, give them a chance to explain and issue a first written warning if you’re not satisfied with their reasons. In the warning, tell them how you expect them to improve and over what period - warn them that if they don’t improve enough, you’ll give them a final written warning.
Hold a second meeting if their performance or behaviour hasn’t improved enough by the deadline - give them a chance to explain and issue a final written warning if you’re not satisfied with their reasons. Revise the action plan with timescales for improvement and warn them that you’ll consider dismissal if there’s no improvement.
Hold a third meeting if their performance or behaviour is still not up to standard by these new deadlines. Warn them that dismissal is now possible. After the meeting - or appeal if there is one - decide whether to give the employee a further chance to improve, or dismiss them. You must tell the employee of your final decision, whatever it is.
Serious misconduct
You can issue a single ‘first and final’ written warning if the misconduct or underperformance is serious enough. Explain that not improving could lead to dismissal. ‘Serious enough’ includes if it’s likely to or has caused serious harm to the organisation itself.
Gross misconduct
With gross misconduct, you can dismiss the employee immediately as long as you follow a fair procedure. You should investigate the incident and give the employee a chance to respond before deciding to dismiss.
You should have examples of what you consider to be gross misconduct in your disciplinary rules. This may include things like theft, physical violence, gross negligence or serious insubordination.
One-off incidents
An informal discussion may be enough to resolve the issue if the misconduct or underperformance was a one-off and the employee has a good disciplinary record.
Dismissals due to illness
Sometimes an employee may have to stop working because of long-term ill health. They may resign, or you may have to consider dismissing them. Dismissal due to illness is a last resort and you should consider as many ways as possible to help the employee back to work, including:
- getting a medical report from their GP with the employee’s permission - they have the right to see the report before you do
- arranging an occupational health assessment
- work out whether or not they’re disabled and make any reasonable adjustments to help them do their job.
If the employee can’t do their job because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them, even if they’re disabled.
Unfair, Constructive and Wrongful dismissal
If you do not dismiss someone fairly, it may be classed as one of the following and you could risk industrial action being taken against your business:
- Unfair dismissal
- Constructive dismissal
- Wrongful dismissal
Read more about Unfair, Constructive and Wrongful Dismissal...
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