Stop, look and listen
David Clay outlines the five key points to be aware of when dismissing any employee.
Termination of employment is the main cause of tribunal litigation (aside from group action claims) and accordingly employers should always approach every dismissal with caution. There are five key points that need to be considered in every dismissal:
1) Service – Check the employee’s length of service. If an employee has two years’ service (or 1 year and 51 weeks if dismissed without notice) then they will qualify for protection from unfair dismissal. You should always seek advice on any dismissal where the employee has reached or is close to the qualifying period.
2) Reason – Make sure you have a clear, evidenced fair reason for termination. This is important to help defend claims of unfair dismissal, but also allegations of discrimination or unlawful treatment. The five fair reasons for dismissal are capability (including performance), conduct, redundancy, contravention of a statutory restriction or some other substantial reason.
3) Process – Make sure you follow a compliant process, in accordance with your own company’s procedures and those laid down by ACAS. If you wish to dismiss without full process, take advice so the risks can be assessed and managed.
4) Contract – Check the employee’s notice period and establish whether they will work their notice, be placed on garden leave or be paid in lieu of notice. If you don’t follow the contract by failing to give adequate notice or by making a payment in lieu of notice, without the contractual right, then you may lose the benefit of any contractual rights, such as post-termination restrictions preventing the employee working for a competitor or poaching the employer’s customers or staff.
5) Day one rights – Ensure that you are not terminating the employee for an unfair reason that will make the dismissal automatically unfair regardless of length of service. This includes dismissing somebody for:
- Family reasons (e.g. pregnancy/childbirth or statutory family leave)
- Health and safety / whistleblowing
- Working time
- Performing as an employee representative
- Asserting a statutory right
- Flexible working request
- National minimum wage
- Part-time or fixed term status
- Union recognition/membership/activities and protected industrial action
- Exercising right to be accompanied