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The Art of Dismissing Fairly

Sometimes, someone just has to go! Dismissing an employee can turn out to be a messy nightmare if handled indelicately and without due regard to fair process. However, the law does allow for staff to be dismissed, if you follow the rules.

5 Legally Valid Reasons for Dismissal

Redundancy

Redundancies occur when employers no longer need as much staff as they used to. This can be as a result of downsizing, change of business landscape or even winding up of the business.

Misconduct

This is one of the most common reasons for dismissal and various disruptive behaviours fall under this category. Anything from an isolated incident of gross misconduct to repetitive patterns of behaviour such as fighting, stealing, refusal to comply with instructions and sexual misconduct can all fall under this heading.

Capability or Qualifications

Incapability is a valid reason for dismissal. If an employee can’t do their job properly, is making too many mistakes or lacks the qualifications necessary to hold a particular job, then it’s a fair reason to dismiss them. It’s also fair to dismiss someone who’s doing a great job but takes excessive time off for sickness or other reasons.

Illegality

If continuing to retain an employee will ipso facto result in a violation of the law, then you can and, in fact must, dismiss them. Examples of this are where an employee loses their right to legally work in the UK or if they lose a license to operate, for example a driver has their driving license suspended or cancelled.

SOSR (Some Other Substantial Reason)

Despite its ‘blanket’ appearance SOSR is quite limited in its scope. However, it may be used where there’s a reorganization of the business or if somebody’s job role no longer fits. It’s even applicable where personalities clash, even though neither party may actually be at fault.

All of these valid reasons come with several caveats and limitations and it’s best to have the guidance of a competent HR Legal Consultant in order to fully understand the complexities of your individual case.

Fair Dismissal Process

Once you’ve made the decision that an employee must go, a fair process must be followed to protect your company from the liability of unfair dismissal claims. The following areas must be covered:

Fair Investigation

Ensure that a fair investigation is conducted with both sides being looked into without bias and with evidence having been collected methodically.

Reasonable Disciplinary Hearing

The employee must be invited in writing to a formal disciplinary hearing, where the evidence against them will be presented and where they will be given an opportunity to reply.

Fair Chair

This is required as a part of the disciplinary hearing, which must be chaired by an impartial person. This means a person who isn’t materially involved in the case or associated with it in anyway. Small organizations might find it hard to find such an impartial person in which case your HR Legal Consultant should be able to provide a suitably qualified person.

Appeal

The employee in question must be given the right to appeal the decision of the disciplinary hearing and must be informed of this in writing with clear instructions on how to proceed with such an appeal. The appeal must be an independent rehearing and not merely a review. It must involve a new, impartial chair and ideally not involve any of the people previously involved in the investigation. The rehearing must work to correct any defects that may have arisen during the initial disciplinary proceedings.

And there you have it! While it can be difficult, when there is just cause the law does allow for dismissals. Choose a competent HR Legal Consultant to assist you during the process to ensure the best possible outcome and reduce the risk of liability to unfair dismissal claims.

The Art of Dismissing Fairly