Dismissal Procedures

There have been many changes to employment law and regulations in the last few years. A key area is the freedom or lack of freedom to dismiss an employee.

An employee’s employment can be terminated at any time but unless the dismissal is fair the employer may be found guilty of unfair dismissal by an Employment Tribunal.

We set out below the main principles involved concerning the dismissal of employees including some common mistakes that employers make. We have written this factsheet in an accessible and understandable way but some of the issues may be very complicated.

Professional advice should be sought before any action is taken.

The Right to Dismiss Employees

Reasons for a fair dismissal would include the following matters:

the person does not have the capability or qualification for the job (this requires the employer to go through consultation and/or disciplinary processes)
the employee behaves in an inappropriate manner (the company/firm’s policies should refer to what would be unreasonable behaviour and the business must go through disciplinary procedures)
redundancy, providing there is a genuine business case for making (a) position(s) redundant with no suitable alternative work, there has been adequate consultation and there is no discrimination in who is selected
the dismissal is the effect of a legal process such as a driver who loses his right to drive (however, the employer is expected to explore other possibilities such as looking for alternative work before dismissing the employee)
some other substantial reason.

Claims for Unfair Dismissal

After one year’s service employees can make a claim to an Employment Tribunal for unfair dismissal within three months of the date of the dismissal and if an employee can prove that he/she has been pressured to resign by the employer he/she has the same right to claim unfair dismissal or constructive dismissal.

If the employee wins his/her case the Tribunal can choose one of three remedies which are:

re-instatement which means getting back the old job on the old terms and conditions
re-engagement which would mean a different job with the same employer
compensation where the amount can be anything from a relatively small sum to an unlimited amount if the dismissal was due to some form of discrimination.

If the dismissal is demonstrated as being due to any of the following it will be deemed to be unfair regardless of the length of service:

discrimination for sex, race, age or disability
pregnancy, childbirth or maternity leave
refusing to opt out of the Working Time Regulations
disclosing certain kinds of wrong doing in the workplace
health and safety reasons
assertion of a statutory right.

Statutory Disciplinary Procedures

On many occasions a dismissal which seems quite justified to the employer will be found to have been unfair if correct disciplinary proceedings were not followed. As a result of the Employment Act 2002 from October 2004 all employers must have a disciplinary procedure in place which satisfies the requirements of the Dispute Resolution Regulations 2004. Whether you employ just one or hundreds of employees ignorance will be no excuse if you fall foul of this important area of new legislation.

There is a basic three-step Dismissal and disciplinary procedure (DDP) which must be used before an employer dismisses or imposes a significant sanction on an employee such as demotion, loss of seniority or loss of pay.

It applies to all types of dismissal, including conduct, capability, redundancy, retirement, expiry of a fixed term contract, unsuccessful probation etc.

Standard procedure

Step 1	Employers must set out in writing the reasons why dismissal or disciplinary actions against the employee are being considered. A copy of this must be sent to the employee who must be invited to attend a meeting to discuss the matter, with the right to be accompanied
Step 2	A meeting must take place
Step 3	An appeal procedure must be established

There may be some very limited cases where despite the fact that an employer has dismissed an employee immediately without a meeting, an Employment Tribunal will very exceptionally find the dismissal to be fair. This is not explained in the regulations but may apply in cases of serious misconduct leading to dismissal without notice. What this means in practice awaits the test of case law.

Modified procedure

Step 1	Employers firstly set out in writing the grounds for action that has led to the dismissal, the reasons for thinking at the time that the employee was guilty of the alleged misconduct and the employee’s right of appeal against the dismissal
Step 2	If the employee wishes to appeal against the decision, the employer must invite them to attend a meeting, with the right to be accompanied, following which the employer must inform the employee of their final decision. Where practicable, the appeal meeting should be conducted by a more senior or independent person not involved in the earlier decision to dismiss.

The only occasions where employers are not required to follow the DDP are as follows:

they reasonably believe that doing so would result in a significant threat to themselves, any other person, or their or any other person’s property
they have been subjected to harassment and reasonably believe that doing so would result in further harassment
because it is not practicable within a reasonable period
they dismiss a group of employees but offer to re-engage them on or before termination of their employment
there are collective redundancies and they consult with employee representatives
the business closes down suddenly because of an unforeseen event
the employee is no longer able to work because they are in breach of legal requirements eg to hold a valid work permit.

Common Mistakes That Employers Make

For many the regulations have caused some confusion and practical difficulties. Some of the most common mistakes include:

not applying the procedures to employees with less than one year’s service. Whilst such employees are often unable to claim unfair dismissal (unless the reason for their dismissal is one of the automatically unfair reasons for which there is no qualifying period of employment such as pregnancy), they may be able to bring other claims such as discrimination with compensation increased accordingly
failure to invite employees to disciplinary hearings in writing or supply adequate evidence before the disciplinary hearing. The standard procedure requires the employer to set out the ‘basis of the allegations’ prior to the hearing
excluding dismissals other than disciplinary dismissals (eg non-collective redundancies, ill-health terminations, retirement, expiry of fixed term contracts)
not inviting employees to be accompanied
not including a right of appeal in a non-collective redundancy situation
not appreciating the statutory requirement to proceed with each stage of the procedure without undue delay
failure to appreciate that an employee may have right to appeal even if it is requested verbally rather than in writing and is after a timescale set down by the employer
not hearing grievances raised after termination of employment
not appreciating that paying an employee a lower bonus for performance related reasons could potentially amount to ‘action short of dismissal’ by the employer
failure to treat as a grievance any written statement/letter (for example a letter of resignation) which raises issues which could form the basis of a tribunal claim to which statutory procedures apply. This means that the employer must be alert to issues being raised in writing event if there is no mention of the words grievance.

How We Can Help

We will be more than happy to provide you with assistance or any additional information required.

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For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.

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