Biz Extra
Published: October 6, 2024 | Updated: 6th October 2024
Most businesses who employee staff will probably have to, at one stage or another, dismiss an employee.
However, as an employer, its important that you follow the correct process in doing so, as you wouldn’t want an unfair dismissal claim arising, for example.
So, in Frettens latest Q&A with Dorset Biz News, Employment Associate Chris Dobbs answers your questions on dismissing a member of staff, outlining how to go about it.
Before making any dismissal, an employer should ensure that the reason for the dismissal is clearly established.
The statutory law states that an employee’s contract can be terminated in these circumstances:
In most circumstances, for an employee to file a claim for unfair dismissal they need to have worked at the company for a minimum of 2 years. This can be carried out at a connected company.
However, if an employee thinks they have been dismissed on the grounds of a protected characteristic, or they have been dismissed for blowing the whistle, there is no service requirement for them to launch a claim for unfair dismissal.
Discrimination claims have no service requirement, and some dismissals can be “automatically unfair” and also have no service requirement.
With that being said, under the new Labour Government, the right to claim unfair dismissal is predicted to become available to all employees from day one. We’re expected to hear more information on this when the autumn budget is released.
Related: How will Employment Law be affected by a labour government?
To be the first to know upcoming changes, you can sign up to our employment newsletter here.
It is important for an employer to establish substantive fairness. They must consider how thorough the investigation has been, the reasonable disciplinary action to take and whether there are any alternatives to dismissal (such as a final written warning or demotion).
If the employee is being dismissed based on their performance, they should have previously been given the opportunity to improve. Any suggested improvements should be reasonable, measurable and obtainable.
Related: Performance & Capability – Everything employers need to know
When it comes to disciplinary meetings, avoid asking leading questions of the employee, as this may imply that a decision was made prior to the meeting.
Similarly, making a decision on the day of the hearing could prompt the employee to challenge the validity of your decision. A period of reflection and consideration is always valuable to demonstrate that the decision has been properly considered.
Related: How to conduct disciplinary procedures
A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract by the part of the employer.
This fundamental breach of contract might be a breach of an express term (i.e. one written in to the contract), such pay or office location, or breach of a term implied in to the contract.
The most common implied term which is claimed to ha been breached is the duty of trust and confidence, which requires employers not to conduct themselves, without reasonable cause, in a way that may damage or destroy the confidence and trust of their employees.
If the employer does damage the relationship, this can be considered breach of that implied term, and the employee is allowed to resign and potentially claim against them.
Constructive dismissal claims are usually low value in comparison to discrimination claims, due to there being no cap on psychological damage awards in the latter.
Whereas, for unfair dismissal, the basic award is calculated based on a person’s age and length of service using their weekly pay which is itself capped at £700 a week. The current maximum basic award is £21,000.
On top of this payment, there is a compensatory award of up to 52 weeks’, pay subject to a cap of £115,115, that can be awarded. This is designed so that employees are only compensated for the reasonable loss of earnings caused by the dismissal.
The employee also has a duty to mitigate the loss they may face themselves. However, the tribunal will not consider this unless the respondent brings it up. An employer can use this to mitigate the losses they may face by searching for jobs the employee could have applied for.
For example, if an employee states that they are going to be out of work for 7-9 months, the employer can use a list of potential job adverts not applied for as proof that the employee has not tried to mitigate the potential loses.
According to the ACAS code, 25% can be awarded either way for failure to comply with the code of practice. This often arises where employers haven’t followed a grievance procedure in constructive dismissal.
In the full article, Chris outlines how to mitigate unfair dismissal claims in much more detail and talks more specifically about the risks associated with constructive dismissals. Click here to read it.
