Dismissals

Dismissing someone fairly

A dismissal is when an employer ends an employee's contract. It usually means the same as being sacked or fired.

It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone.

Before an employer dismisses an employee, they should:

If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid.

The procedure an employer follows will be taken into account if an employee claims for unfair dismissal and the case reaches an employment tribunal.

Reasons for fair dismissal

By law (Employment Rights Act 1996), there are 5 potential reasons for dismissing someone fairly. These are:

  • conduct – when the employee has done something that's inappropriate or not acceptable
  • capability – when the employee is not able to do the job or does not have the right qualifications
  • redundancy – when the job is no longer needed
  • a legal reason – when the employee cannot do their job legally, for example a lorry driver who's banned from driving
  • 'some other substantial reason' – a term used for a wide variety of other situations

Other substantial reasons could include things like:

  • a fixed-term contract ending
  • third party pressure, for example if a client refuses to work with an employee
  • an employee refusing to agree to new terms and conditions of employment

Dismissal for conduct or capability reasons

An employer should handle issues of unacceptable or inappropriate behaviour ('misconduct') or performance ('capability') in line with the Acas Code of Practice on disciplinary and grievance procedures.

They can use the disciplinary procedure step by step guide to help them through the process.

If an employee cannot do their job or is performing badly for a reason that's not their fault, their employer should still handle the issue in line with the Acas Code of Practice.

Gross misconduct

Gross misconduct is when an employee has done something that's very serious or has very serious effects.

Examples could include:

  • fraud
  • physical violence
  • serious lack of care to their duties or other people ('gross negligence')
  • serious insubordination, for example refusing to take lawful and reasonable orders from a supervisor

Your organisation might have its own policy or rules with other examples of gross misconduct.

Redundancy

Redundancy is usually a type of dismissal when a role is no longer needed. Employers should only consider making redundancies if part or all of the business or organisation is:

  • closing, or has already closed
  • changing the types or number of roles needed to do certain work
  • changing location

In this case, the employer must follow a full redundancy process.

If an employer has concerns about an employee’s conduct or performance, they need to follow a disciplinary or capability procedure.

Find out more about:

Dismissal because of long-term illness

Dismissal should be a last resort. The employer should firstly support the employee and help them get back to work. This could include making any reasonable adjustments if they have a disability (this includes some long-term health conditions).

It may be fair to dismiss someone on long-term sick leave, depending on the circumstances.

For example, an employer may be able to dismiss someone fairly if:

  • they've considered all other options
  • it's not possible for the employee to do their job
  • the employee’s inability to work has a significant impact on the business

Employers must investigate fully and have a valid reason for dismissal. The employee could make a claim to an employment tribunal if they think they've been unfairly dismissed.

Dismissing someone because they're disabled (this includes some long-term health conditions) is unlawful discrimination. Find out more about disability discrimination.

Giving the reasons for dismissal

If an employer dismisses an employee, they must tell the employee:

  • why they've been dismissed
  • when their employment contract will end
  • their notice period, if there is one
  • their right to appeal the decision

It's a good idea to put it in writing.

When an employer must put the reasons in writing

An employer must put the reasons in writing for an employee who's pregnant or on maternity leave, regardless of how long they've been employed.

Other employees have the right to ask their employer for a written statement giving the reasons for their dismissal if they have:

If an employee asks, their employer must give them the reasons in writing within 14 days.

Telling other people at work

Employers should respect the confidentiality of the person who's been dismissed. For example, when they tell colleagues and clients that the employee has left. Any outcome of a disciplinary procedure must remain confidential.

Find out more about talking to staff after a disciplinary procedure

Settlement agreements

A settlement agreement is sometimes used when an employer and employee agree to end their employment relationship because they both agree it's no longer working. This can include some dismissal situations.

Find out more about settlement agreements

If you're thinking about using a settlement agreement, you should get legal advice.

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