A 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.
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, which might include regular appraisals (with time-keeping issues being addressed), 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.
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 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.
If 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.
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. 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 women may wear 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).
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. If so, you must either be able to show that:
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.
However, when deciding whether treatment is connected with a disability, the test to apply is whether you would have treated a non-disabled employee who had been off sick for the same length of time in the same way. If you would, it is not discrimination. Also, 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, if necessary 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, and you cannot keep the position open indefinitely, 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.
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 would probably 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.
You cannot sack employees for being pregnant but, 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. 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.