The question of how to fire an employee legally in the UK is complex. Sometimes, dismissing an employee is the only course of action available, whether an employee has breached the code of conduct or you need to make them redundant.
However, you must follow the correct procedures, laws and regulations and act fairly and reasonably, even if you have a legitimate reason for needing to dismiss someone. This reduces the risk of repercussions, such as an employee taking you to an employment tribunal.
In this blog, our HR experts will cover the main types of dismissal and the steps you need to follow when dismissing an employee.
Types of dismissal
Dismissal is when an employer ends an employee’s contract of employment. It’s sometimes referred to as ‘firing someone’ or ‘letting someone go’.
There are several different types of dismissal:
- fair dismissal
- unfair dismissal
- constructive dismissal
- wrongful dismissal
Fair or unfair dismissal
Whether a dismissal is fair or unfair depends on the reason for the dismissal and how you act during the dismissal process. Later in this blog, we’ll cover the steps you need to follow to ensure your dismissal is fair.
Constructive dismissal
This is when an employee resigns because of a breach (or multiple breaches) of their employment contract, or even for breaches of an implied contract term, which is part of the regular custom and practice of working for a company that has not been written down.
An employee can claim constructive dismissal for several reasons, for example, if their wages have been cut without agreement. A constructive dismissal is not automatically unfair. However, it’s difficult for employers to argue that a contract breach was fair. Additionally, a constructive dismissal can lead to a claim for wrongful dismissal.
Wrongful dismissal
This is where you break an employee’s contract during the dismissal process. This includes not giving them the proper notice period or pay. It’s not the same as unfair dismissal.
How to dismiss an employee with the least risk in the UK
1. Issue sufficient warnings
If an employee breaks the code of conduct or underperforms, you should keep track of these issues to help support a potential dismissal in the future. You must issue written warnings in line with your company’s procedures to allow them to improve their behaviour or performance. Keep track of all relevant warnings, documentation and evidence.
2. Ensure you have a valid reason for dismissal
You must ensure you have a valid and fair reason for dismissing an employee before you start any proceedings to avoid an unfair dismissal claim. You should also ensure you’re not dismissing the employee due to a protected characteristic.
There are several situations when you can dismiss an employee fairly:
- If they can no longer do their job correctly or they consistently underperform. This could be due to an unwillingness to work, poor health or an inability to adapt to a change.
- If it would be illegal to continue to employ them, for example, if they have lost their driving licence and work in a driving role and you have no alternative work for them, This is called a breach of a statutory restriction.
- If they repeatedly break the code of conduct or commit gross misconduct (such as theft or discriminatory behaviour).
- You need to make an employee or employees redundant, for example, if the company is closing down or there is not enough work available for all the employees.
- If there is some other substantial reason (SOSR). This covers all other fair dismissals that don’t fit into the above categories, such as the expiry of a fixed-term contract.
3. Follow the company’s dismissal and disciplinary procedures
Your company’s dismissal and disciplinary rules and procedures should be in writing, and you must follow them when dismissing an employee. For example, you might have to give a specific number of warnings before starting dismissal proceedings. If you don’t follow your company’s procedures, an employment tribunal might order you to pay the employee compensation.
4. Act reasonably and fairly
Even if you have a fair reason for dismissal, you must still ensure that you act reasonably and fairly throughout the dismissal process. There’s no legal definition of acting ‘reasonably’. However, during an employment tribunal, they would likely consider if you thought the reason was fair and if you followed the company’s procedures and all relevant laws during the dismissal process.
5. Follow the ACAS guidance
You should also follow the Acas (Advisory, Conciliation and Arbitration Service) Code of Practice. Although failing to follow this does not automatically make a dismissal unfair, employment tribunals can increase damages made against you by up to 25% if they think you have unreasonably failed to follow this guidance.
6. Arrange a disciplinary meeting
If you are sure you have a valid reason for dismissal, you can invite the employee in for a disciplinary meeting. You should inform them in writing that the meeting could result in their dismissal and that they have a right to bring a representative with them.
During the meeting, present all the evidence you have gathered, tell them the reasons for their potential dismissal, and allow them to comment on the evidence. Someone should be present to act as a witness and take notes of the proceedings (a copy should be given to the employee).
Have a break to deliberate on what they have said before you make your final decision.
7. Deliver the outcome
When you reconvene the meeting, you should formally deliver the outcome. Make sure you reiterate the reasons for the dismissal (these reasons can also be presented in writing). If further investigation is needed, you should communicate this and set up a second disciplinary hearing once the investigation is complete.
If you decide to terminate their employment, you should communicate the following information both verbally and in writing:
- The reasons for the decision to dismiss the employee
- When their contract ends
- Their notice period (if they have one)
- Their right to appeal, the appeal process and deadline
- Outstanding pay and remaining annual leave
- The need to return any company property
HR consulting services by Trusted HR
Whether your organisation is struggling with an employee’s poor performance or you need to make staff redundant, our HR consultants are here to help. Trusted HR offers email, telephone, video call, or on-site support to help ensure you follow the correct dismissal procedures and protect your company.
Our team members are fully qualified, up to CIPD Level 7 and highly experienced. They can help you reduce the risk of dismissing an employee, especially if it’s a complex issue. In addition to our ad hoc HR consultancy, we also offer three levels of retainer HR support if you require ongoing guidance and advice.
Trusted HR offers a free, 45-minute, no-obligation consultation on any HR issue, including dismissals. Request your consultation to get started.
