DISMISSING AN EMPLOYEE LEGALLY
Protect your business from costly and damaging employment claims
Get help to deal with disputes before they escalate
Clear, efficient, specialist advice
Unfortunately, there will be times as an employer that you need to dismiss an employee . We can help you to understand and meet your obligations, giving you peace of mind that you have acted fairly and legally.
If you need to make cuts to save money or restructure your business, you will need to follow a redundancy process. Visit our Making Redundancies page for information.
COULD MY FORMER EMPLOYEE HAVE A LEGAL CLAIM BASED ON THEIR DISMISSAL?
When dismissing an employee, mistakes could leave you open to a legal claim for:
Unfair dismissal
A dismissal made without a legally fair reason. This is different to a common-sense judgement of fairness. Some reasons are automatically unfair, such as dismissing an employee for whistle blowing.
Wrongful dismissal
Where you breach your contractual obligations in dismissing the employee, for example by not giving the correct notice.
Constructive dismissal
Although this is where an employee resigns, rather than a dismissal, you should be careful of leaving yourself open to a claim of constructive unfair dismissal. If you fundamentally breach your contract with your employee, causing your employee to resign, you could face a claim.
Discrimination
There are several ways you could risk discrimination claims. If you are inconsistent in treating employees and this inconsistency can be linked to a protected characteristic, the dismissed employee could bring a discrimination claim.
Where the dismissal is for sickness and capability, you have additional duties to support your employee if the illness is a ‘disability’ under the Equality Act including making reasonable adjustments. The legal definition of disability can be quite different from the common understanding of the word. You should seek advice to understand these responsibilities before looking to dismiss for sickness or sickness absence.
A former employee could have a claim for indirect discrimination if they are dismissed for breaching a policy that impacts disproportionately on people with a protected characteristic. For example, dress codes that effectively forbid afro hairstyles impact disproportionately on black people, while inflexible working practices can be grounds for sex discrimination, due to the disproportionate impact on working mothers.
THE COST OF A LEGAL CLAIM
Defending a legal claim can be costly, stressful and damaging to your reputation.
If the case goes all the way to tribunal and it is found that you breached your employee’s rights, you could be ordered to pay compensation and damages. If the dismissal was discriminatory or in breach of whistleblowing protection, there is no upper limit on compensation. There is also no cap on compensation for cases of wrongful dismissal claims that are taken to the County or High Court.
Alternatively, your business may choose to reach an agreement with your employee outside of the tribunal process. This may still involve a payment to your employee, and you will need to be open to negotiation. Disputes are often better resolved by negotiation and a mutually agreed settlement. There are many factors that can be relevant to whether this is the best course of action for you, and we recommend that you take advice on this method of dispute resolution.
Investing in legal advice during the dismissal process could save you a significant amount of money and time in the long run by avoiding a legal dispute.
WHAT SHOULD I CONSIDER WHEN DISMISSING AN EMPLOYEE?
If an employee brings a tribunal claim, the onus is on you to prove that you behaved fairly and legally. It is a good idea to get legal advice to ensure that you are acting fairly, and you can prove it, before making a decision to terminate an employee’s employment.
When dismissing an employee, you should consider whether:
You have a legally fair reason to dismiss the employee
There are only a few legally fair reasons to terminate an employee’s employment. To be legally fair the dismissal must be because of ill health, capability, due to poor performance, conduct, illegality or some other ‘substantial reason’. As this is not a common-sense judgement, it is wise to seek legal advice to help understand how the law applies to your matter and whether the grounds exist for a fair dismissal.
You are meeting the terms of the employment contract
For example, you followed the procedures set out in your employment contracts and gave the employee correct notice. Tribunals imply an obligation of trust between you and your employee and behaving badly enough to breach this trust is considered a breach of your contract.
Dismissal is a reasonable response
An employer must act reasonably. What is reasonable will depend on the circumstances of the case. For example, while it is misconduct to be late, dismissing an employee the first time they are a few minutes late to work is unlikely to be reasonable. A solicitor can help you to understand whether dismissal is reasonable, or whether there are steps you should take first to show that you have responded fairly.
You are following a fair procedure
This will depend upon the reason for the dismissal, and your business procedures. This could include having a thorough investigation into your employees’ behaviour or failings and providing an opportunity for them to explain themselves or improve their work.
NEXT STEPS
Call us or fill in our contact form to get in touch for advice about a dismissal or help to defend a legal claim.
If you are facing a lot of disputes and dismissals, you may have a problem with:
Unclear handbooks that lead to mistakes or misunderstandings
A poor grievance policy that fails to resolve problems
A standard contract of employment that does not reflect your actual working relationships
You may benefit from improved, easy-to-read contracts and handbooks tailored to your business. Get in touch for more information.
GET IN TOUCH
Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Address: Spencer Shaw Solicitors Limited
St Mary's House, 68 Harborne Park Road,
Harborne, Birmingham, B17 0DH
Opening hours:
Monday - Friday 9:00AM - 5:00PM
Saturday, Sunday & Bank Holidays - Closed
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