Fair Reasons for Dismissal: reasons other than misconduct

This is the third in a series of articles discussing Fair Reasons for Dismissal and Unfair Dismissal. For a dismissal to be fair it must be based on one of five reasons, the second article discussed the Fair Process for a Misconduct Dismissal and this article we will take a brief look at the remaining four reasons.

Capability or Ability To Do The Job

This is where the employee is failing to reach minimum acceptable standards or they can’t do the job properly, for instance they don’t have the right qualifications. Adequate training is the critical consideration in these situations.

Where, despite providing extra training, the employee’s performance continues to be below the minimum acceptable standards you should discuss this with them, making it clear which areas are unsatisfactory and explain your expectations for improvement. You should always allow them time to improve before taking action to dismiss. Examples of the type of behaviour that would warrant a capability dismissal include:

  • Failure to keep up to date with technological changes to their job
  • Failure to get along with colleagues
  • Long-term or persistent illness making it impossible for them to do their job

Dismissals relating to illness are difficult and there are many alternatives which should be considered before reaching a decision to dismiss. If the employee has a disability, such as a long-term illness, you have a legal duty to try to find a way round the problem, including making ‘reasonable adjustments’ to how and/or where you work.

Redundancy

There is a strict statutory framework which must be followed when a redundancy situation applies.

I am often asked ‘can’t I just make him redundant?’ and my answer is always ‘No!’. Redundancy should never be viewed as an easy option to dismiss an employ who is not performing for one reason or another.

To begin with the employees concerned must be redundant within the definition of the term in the Employment Rights Act 1996:-

  • The employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was so employed.
  • The employer has ceased, or intends to cease, to carry on the business in the place where the employee was employed to work.
  • The requirements of the business for the employee to carry out work of a particular kind or for employees to carry out work of a particular king in the place where the employee was employed by the employer have ceased or diminished, or are expected to cease or diminish.

The test usually used by Tribunals is:-

  • Do any of the definitions set out above exist?
  • If so, is the dismissal wholly or mainly attributable to that state of affairs?

In addition to the above reasons, the dismissals must be reasonable.

The reason(s) for a redundancy situation can occur through any number of factors, such as economic viability of the business, technical change or organisational re-structuring of the business.

A Statutory Restriction

Dismissal can take place if continuing to employ would break the law i.e. a lorry driver loses their driving license.

Some Other Substantial Reason

The emphasis here is on ‘substantial’ and applies to a situation where you have an overwhelming reason why you must dismiss the employee. This should always be a last resort so you need to be able to demonstrate that all other alternatives were considered before choosing to dismiss. Reasons that have previously fallen into this category include:

  • imprisonment
  • an irresolvable personality clash between the employee and a co-worker
  • if the business moves to another location, or if it’s taken over, and it isn’t possible to employ the person because of economic, technical or organisational reasons
  • unreasonably refusing to accept a company reorganisation that changes the employment terms
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Fair Reasons for Dismissal: reasons other than misconduct

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