Dismissals - dealing with common situations

Reviewed by Suzanne Staunton, employment barrister, Guildhall Chambers


Dismissals - dealing with common situationsA claim for unfair or wrongful dismissal, or unlawful discrimination, is worrying and time-consuming, and can be costly to your business. There is the morale of your staff to think about, and your reputation - with customers and suppliers - may be at stake

Here are seven examples of common reasons you might consider dismissing an employee, and an assessment of your likely position in each case.

However, each case depends upon its own facts, and these are no substitute for specific advice, tailored to your particular circumstances, so always take advice before dismissing an employee.

1. Poor time-keeping

Poor time-keeping is likely to constitute either a performance or a misconduct issue, and both are potentially fair reasons for dismissal. But you must still apply a fair procedure, starting with establishing the reason for the lateness. The procedure might also include regular appraisals (with time-keeping issues being addressed), giving early warnings, providing the employee with a timescale for improvement, and obtaining medical evidence if there is any risk that the problem has a medical cause. If there is a genuine reason for poor time-keeping, such as a disability, you may be obliged to make 'reasonable adjustments' to accommodate the employee.

2. They are useless at their job

Poor performance is one of the potentially fair reasons for dismissal. However, to demonstrate that you have behaved in a fair and reasonable manner you may have to show you conducted regular appraisals (to identify weaknesses and the reasons why the employee is struggling, at an early stage), issued early warnings with a set time to improve, set realistic targets, and if necessary offered training and/or supervision to address problem areas.

3. They lied about their qualifications or experience

If you can prove that the employee has knowingly misstated details about their qualifications or experience, this would be likely to count as 'some other substantial reason' to justify dismissal.

If, however, the qualifications are desirable rather than necessary, and particularly if the employee has been doing the job satisfactorily without them, it may be unfair to dismiss. So, if you want and need an employee to have qualifications and/or a certain type of experience, make your job offer conditional on them, and check up on them before you confirm the employment.

As in any other disciplinary case, you need to ensure that you observe any written disciplinary procedures that you have, and that, in any event, the procedures follow the 2009 Acas Code of Practice or you risk an uplift of up to 25% in any award made against you in an Employment Tribunal.

4. They refuse to wear appropriate clothing

If the employee is representing the company in dealings with customers or suppliers, or appropriate clothing is required for health and safety reasons (for example by the need for hair coverings in places where food is prepared), you can potentially dismiss them, depending on the seriousness of the breach. If they are working behind the scenes, dismissal would be far riskier.

Beware of being discriminatory on the grounds of sex (for example by requiring men to wear a shirt and tie while allowing women to wear casual T-shirts), or on the grounds of race, ethnic origin or religion (for example, by requiring formal business dress and refusing to allow employees to dress according to their race, ethnic origin or religion).

5. They have been off sick, long-term

Incapability is one of the potentially fair reasons for dismissal. But first you need to consider whether the employee's ill health amounts to a disability under the law. A disability is one that lasts, or is likely to last, longer than a year - and has a more-than-trivial effect on normal day to day activities.

If the employee is disabled, you must either be able to show that:

  • your treatment of the employee was for reasons unconnected to their disability;
  • was not on the grounds of disability; or
  • that such treatment was justified in that it was a proportionate means of achieving a legitimate aim.

You also need to show that the reason for the dismissal cannot be removed by a 'reasonable adjustment' to the employee's working conditions. Otherwise it is discrimination.

Either way, as part of any process which will help them return to work, an Occupational Health report should be obtained and its recommendations should be followed. You should also check with the employee what they think would assist them in returning to work.

If you neither knew about the disability nor ought reasonably to have known about it, it is not discrimination.

If the employee is not disabled, but suffers from long-term ill health, an Employment Tribunal would certainly expect you to do everything you can to keep your employee on, including an offer of alternative employment. However, if — after consultation with the employee and a medical investigation — there is no prospect of them returning to work in any role, and you cannot keep the position open indefinitely (and can prove this to be the case), you may be able to dismiss on the grounds of 'incapability'.

To avoid a successful claim for unfair dismissal, you must be able to show that you acted reasonably in treating the absence as a reason to dismiss, and that you acted fairly before dismissing. Take legal advice before you do anything.

6. They've been sentenced to a prison term

Be careful. Great care should be exercised, and legal advice should be sought. The fact that the employee is in prison and therefore cannot do their job is not in itself enough: it may 'frustrate' the contract, but as a general rule Employment Tribunals are reluctant to decide that the contract of employment has ended just because of the employee's inability to perform it.

If, however, the employee's offence was related to their work, a dismissal may be fair on grounds of conduct. Alternatively, the circumstances of the imprisonment might be such as to reflect adversely on the image of your business, and/or destroy trust and confidence in the employee, which might count as 'some other substantial reason' for dismissal.

You should still carry out such investigations as are reasonable in the circumstances before making any decision to dismiss. Such investigations must be carried out promptly to ensure that any dismissal is fair.

7. She's pregnant

You cannot sack employees for being pregnant. In theory at least, the fact that an employee is pregnant should not stop you from sacking her for one of the five fair reasons as long as it is not in any way influenced by the pregnancy. But be very careful. You need to be very certain that her behaviour cannot be attributed to the pregnancy (which might, for example, be a cause of poor time-keeping — because of morning sickness — or absenteeism). You should conduct a thorough investigation and ascertain the facts before taking any action against her. Take advice.

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