Fair Reasons for Dismissal
There are five Fair Reasons for Dismissal: misconduct, capability, redundancy, a statutory restriction and some other substantial reason. Dismissal which does not meet one of those criteria would be unfair.
This is no doubt the one reason you are most familiar with. Dismissal for misconduct will be the end result of a disciplinary process for inappropriate conduct or behaviour by one of your employee’s. Dismissal will be an appropriate outcome in a disciplinary situation where the employee fails to correct their conduct or behaviour following previous formal disciplinary warnings or where their conduct or behaviour is so serious it warrants instant dismissal (gross misconduct).
Misconduct is one of the five fair reasons for dismissing an employee. Read my tips to achieving a fair misconduct dismissal and avoid an unfair dismissal claim: Fair Misconduct Dismissal.
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.
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:
- 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
For an employee to claim unfair dismissal, they must:
- Have worked for their employer for a minimum of 12 consecutive months
- Claim for a dismissal that is statutorily considered to be unfair (for example, by exercising a legal or contractual right)
Should an employee wish to lodge a case for unfair dismissal, the case will be taken to an employment tribunal. The tribunal will examine the case and assess whether the employer has behaved “reasonably in all circumstances”. Procedure should be followed as closely as possible from the outset of a claim, though some cases may be littered with complications and mitigating factors that may impede this.
In order to assess the reasonable behaviour of an employer within a case, the tribunal will examine whether:
- Reasonable procedure was followed.
- The decision of dismissal was made as a reasonable response from the employer.
- The dismissal was fair given the facts known at the time.
In a case of an unfair dismissal claim, the employer is usually required to prove that their treatment of the employee was fair and their dismissal was justified. It is not usually the employee’s responsibility to prove that they were treated and dismissed unfairly, with the exception of an employee resigning and claiming that their employer made it impossible to remain in their job role (constructive dismissal).
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