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Dismissing an employee is never an easy decision. It usually follows a stressful period following the employee’s misconduct or pattern of poor performance. No business wants to dismiss its employees, and employers usually treat dismissal as a final option if all other options have been exhausted. However, dismissal can still be a fraught area for employers as it can lead to a personal grievance claim if the employer has not followed the right steps. This article sets out three questions to think about when contemplating the dismissal of an employee, including whether:

  • dismissal is justified;
  • your business has followed the required procedure; and 
  • dismissal is the best solution, even if it legal to do so.

Is Dismissal a Justified and Proportionate Option?

Dismissal can lead to a successful personal grievance if it is not justified based on the employee’s actions in question. For that reason alone, it is essential to consider what a proportionate response would be to whatever is causing you to consider dismissing an employee. 

For example, one of your employees might commit misconduct in some minor way by swearing. In this case, it is hardly a proportionate response to dismiss them as a consequence. This would be an unjustified dismissal if you fired that employee.

It can sometimes be hard to take a back step and objectively weigh up what a reasonable response is and whether it can amount to dismissal. As a general rule of thumb, serious misconduct is more likely to amount to a justified dismissal than regular misconduct. Similarly, extremely poor performance is more likely to justify dismissal than if the employee’s performance has been mediocre. It can be a good idea to get expert advice from an employment lawyer about whether dismissal is justified. 

Has Your Business Followed a Fair and Reasonable Process?

No matter the substantive reasons for dismissing an employee, the dismissal can still be unjustified if your business does not follow the required procedural steps. Many employers forget their requirements under the obligation of good faith when an instance of serious misconduct occurs. 

Do not forget that you must always act in a professional way towards your employees and hear their side of the story. If it is a misconduct issue, you need to give them time to get support and advice. Likewise, you should genuinely investigate to see what happened before deciding to dismiss. If the employee’s performance is poor, you need to give them a chance to improve through a performance improvement process before dismissing them based on that performance. 

Is Dismissal in the Best Interests of Your Business?

Dismissal might be justified in the circumstances and is certainly a legal option. Still, it may not actually be in the best interests of your business. You should also consider:

  • Is the employee likely to improve their behaviour or performance if given more of an opportunity to do so? 
  • What is the institutional knowledge and experience that this employee has, and how easily could other employees replace those factors? 
  • Is it possible for the employee to suffer some other kind of consequence such as final warning, to correct their behaviour but keep them in the business? 

Key Takeaways

No business or employer enjoys dismissing people. It is typically a last resort and usually follows a fair process. However, given the legal stakes, it is important to consider the key questions before dismissing an employee. You should always be clear about whether dismissal is a proportionate response, and whether it is justified on the facts and following a fair and reasonable process. Even then, it is worth having a final think about what the best course of action is in the circumstances. 

If you want to know more about dismissing an employee, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

When will a dismissal be found to be unjustified?

There are a variety of ways that a dismissal can be found to be unjustified. The main categories of issues involve substantive aspects (the decision to dismiss was not proportionate) and procedural aspects (the business did not follow a fair process).

What does a fair and reasonable process require with very serious misconduct?

An employee might commit a very serious incident of misconduct that you believe requires immediate dismissal (summary dismissal). In that case, you should consult an employment lawyer for advice. There are still procedural requirements that you must follow. Likewise, your business cannot immediately dismiss the employee without having the chance to say their side of the story and refute any allegations made against them. However, in circumstances of serious misconduct, dismissal is more likely to be a justified option following a fair process.

What does good faith mean in the context of dismissing an employee?

As an employer, you owe a good faith obligation to all your employees. You still need to treat your employees fairly and positively, no matter whether they have committed misconduct or are performing poorly. You need to give them the benefit of the doubt, for instance, and cannot jump to conclusions.

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