Dismissing an employee can be one of the hardest things an employer has to do. In this article, our expert HR consultants at Pure® Human Resources answer some common employment dismissal FAQs from our clients about this sensitive topic.

I want to dismiss someone from my business – what do I need to know?

The ACAS Code of Practice sets out the detailed steps that you should follow when dismissing an employee. These steps apply to everyone who has passed their probation period, whether or not they have reached two years of continuous employment with your company.

You will hopefully have a disciplinary or capability procedure in your staff handbook, based on the ACAS Code of Practice, for you to work through with your employee. (If you don’t, get in touch and we can help you complete any policy and procedure gaps.)

During any formal procedure, you will need to consider the underlying reason and potential cause for the potential dismissal, specifically whether one of the nine characteristics covered in the Equality Act 2010 are a factor. These are age, sex, race, religion & belief, disability, marital status, gender reassignment, pregnancy & maternity and sexual orientation.

If they are, this could affect the dismissal procedure which is why it is always wise to consult a professional consultancy like Pure® Human Resources for employment dismissals advice. They can advise you before you take any action, minimising the risk of your employee making a claim against you regarding their dismissal.

What employment rights do employees have?

Not only do employees have rights, but so do all candidates who apply for a job with you. They are all protected by the Equality Act, the UK’s anti-discrimination legislation, which currently includes nine types of unlawful discrimination as detailed above.

So, it is essential that you are familiar with, and mindful of, this legislation at all times, from writing your job advert to all the way through your employee’s career with you, to make sure that you don’t give a candidate or an employee any grounds to make a claim against you.

You and your team should all be trained in, and know all the relevant details about, other employee rights like working hours, holiday entitlement, fair and safe working conditions and so on.

Our HR for Non-HR Managers course and Equality, Diversity and Inclusion course are both very useful ensuring you are up to speed with your legal obligations.

Do you have to give a reason for an employee dismissal?

It is important to give the person you are dismissing a valid reason for your decision, even though you don’t have to by law.

Not knowing why they are being dismissed could leave your employee feeling disgruntled and without closure, which isn’t fair on anyone, and could have a negative impact on your brand if they share their sentiments online or spread the word with people they know, who then tell others they’ve heard your company doesn’t treat people well.

You don’t have to give them a lot of detail, but certainly enough for them to understand why they are being dismissed. It might be that their poor attendance and unreliability was unacceptable, or that they repeatedly didn’t do their job to a sufficient standard despite plenty of support and training.

You should always confirm your reason/s for the dismissal to the employee in writing

When can I instantly dismiss an employee?

We hear this phrase a lot but there is actually no such thing as instant dismissal. Even in a case of gross misconduct, which is when it is really obvious that the behaviour of the individual is so bad and shocking that it has made their position in your company untenable, you still have to follow your standard process with that individual, in line with ACAS guidelines and your own disciplinary procedure.

Typically, you would write to the individual, inviting them to a meeting with at least 48 hours’ notice, and giving them the right to be accompanied by a work colleague or a trade union official. This meeting, or hearing as it is sometimes called, would then be followed up with their right to appeal. If their appeal fails, they can then be dismissed from your employment.

So, however cut and dried the situation appears, you can never legally ‘sack someone on the spot’.

What is unfair dismissal?

Unfair dismissal is a claim that an employee can bring against you and your business. Unless their claim relates to one of the nine characteristics in the Equality Act, they have to have worked for you for at least two years continuously, in order to be eligible to bring a claim. In past years, this timeframe has changed from two years to one year and back to two years, so it may not stay two years forever! It depends on the government of the time.

But it’s fair to say that an employee with over two years’ employment has more protection than one with less than two years’ service.

What is constructive dismissal?

This is another phrase we hear used a lot. For someone to have been constructively dismissed, they have to have physically left your employment. So, technically, in this situation the employee will have made the decision to leave your employment but, crucially, they will have done so because they felt they had no choice; that they were forced to leave by being driven out by their employer’s behaviour or actions.

Quite often in these circumstances, the employee will leave without giving notice.

They might feel that something’s happened that they just can’t put up with, or it may be the last of a series of events that ‘breaks the camel’s back’ and they walk out, feeling that they can’t come back.

They then make a claim for constructive dismissal, believing that their employer has rejected them, and that walking out was justified.

I need to dismiss someone in a probationary period, can I just let them go?

A probation period is usually three to six months. If you have one stipulated in your employment contract, and you feel that an employee is not going to make it past their probation period and you need to let them go, you need to follow a respectful process and be really clear with them.

This is the courteous way to handle things, even though a probation period is out of scope of the disciplinary procedure.You should invite them to a probationary review meeting, either at the end of their probationary period or as soon as possible if you feel the situation can’t wait and needs to be dealt with immediately.

After your meeting, the next step is to write to your employee confirming your reason/s for dismissal, so there is no room for any misunderstanding.

I need to retire someone from my business. How do I do it?

Retirement doesn’t actually exist in UK employment law anymore, it was removed with the introduction of anti-age discrimination law over 10 years ago.  We used to be able to include a retirement age, typically 65, in an employment contract, that required people to retire when they reached that age.  If a retirement age is still in your employees’ contract, the contract should be updated!

So, if someone wants to leave your business to ‘retire’, they’re technically resigning and should be treated like any other leaver, although you will of course want to treat their situation with extra sensitivity as it can be an emotional and poignant life changing time.

If you feel that they’re not performing, then being older doesn’t change the process you would go through, i.e. following your disciplinary process, or your capability process to review your expectations around their performance and the job you need them to do.

Listen to Pure HR’s Managing Director, Stephanie Fosh talk about employee dismissals

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