Dismissing an employee is one of the most difficult things you will have to do as an employer. This can be even more so if the employee has worked for you for more than two years, and therefore has protection from unfair dismissal (see 'automatic unfair dismissal
' for exceptions to this two year rule).
Where an employee has protection from unfair dismissal you can only dismiss them for one of the following five potentially fair reasons:
- Breach of a legal duty/illegality
- Incapability (including both poor performance and ill health)
- Misconduct (including gross misconduct)
- Some other substantial reason
Once you have identified the potentially fair reason you must then follow a fair process in carrying out the dismissal. Although the exact process depends upon the circumstances and the potentially fair reason it will almost always include writing to the employee to advise them of the reason you are thinking of dismissing and meeting with the employee to hear their side of the story.
Although potentially time consuming, a failure to fairly dismiss an employee can give rise to a claim for unfair dismissal. A claim for unfair dismissal can result in an order that you must reinstate the employee and/or an order to pay compensation of up to 12 months' pay (subject to a cap).
If you are an employer considering whether to dismiss an employee or if you have already dismissed an employee who is now threatening you with a potential claim for unfair dismissal please contact Nockolds' specialist Employment Team on 01279 755777 to discuss how we can help.