Dismissing an employee is never an easy task and it is vital that employers ensure they take the necessary steps to stay on the right side of the law. Paula Matheson, Senior Employment Law Advisor of Empire HR, provides advice to employers on how to deal with this potentially sticky situation.
Q: I feel I have no other choice than to dismiss an employee. He is consistently underperforming and although this has been discussed with him he does not seem to have made any real attempts to change his behaviour. Does this constitute a reason for dismissal?
A:The following are fair reasons which employers can use as grounds for dismissing an employee. They are:
- If the position has become redundant
- If the employee is guilty of misconduct
- If the employee has proved themselves to be incapable of fulfilling their responsibilities or if they no longer have the necessary qualifications to carry out the role
- If there is a statutory prohibition which make it impossible for the employee to continue
- If there is 'some other substantial reason' which makes it impossible for the employee to continue
- Retirement
When dismissing an employee it is important to ensure that you comply with the law, otherwise you may find yourself facing a claim of unfair dismissal – something that can cost the business over £50,000.
Normally performance issues should be dealt with through the formal disciplinary procedure, progressing through the various levels of warnings starting at a formal verbal warning and progressing through written warning, final written warning and ultimately dismissal. The employee should be given adequate timescales to improve at each stage. Any dismissal would require to be with notice as under performance would not be deemed as a gross misconduct offence. On termination of employment, the employee would also be entitled to payment for outstanding accrued annual leave. Depending on length of service and the circumstances surrounding each case, to immediately dismiss an employee without going through each level of disciplinary action may result in a successful claim for unfair dismissal.
Q:One of my employees is guilty of gross misconduct. What steps do I need to take in order to dismiss her?
A:If an employee is alleged to have committed a gross misconduct offence, you should firstly meet with the employee for an investigation meeting to discuss the allegations and then suspend them on full pay until the investigation procedure is complete. The employee should then be invited to a formal disciplinary hearing. However, in exceptional circumstances for example, where an employee has been fighting or an incident has occurred off-site, then the employee should be suspended at that time and then invited for an investigation meeting at the first available opportunity.
There is a three step process which must be followed; otherwise the dismissal might be construed as being unfair. This comes from the implementation of the Employment Act 2002 (Dispute Resolution) Regulations 2004.
Firstly you should invite the employee to a meeting in writing, notifying them of the allegations against them and the basis of the allegations with the right to be accompanied by a trade union representative or fellow employee and ensuring that all the necessary paperwork is in order prior to the meeting taking place. If the disciplinary hearing may result in termination of employment, this should be highlighted in the letter.
Step two is holding a meeting to discuss the allegations – at which the employee has the right to be accompanied – and notify the employee of the decision with the right of appeal.
Finally, if the employee wishes to appeal, hold an appeal meeting at which the employee has the right to be accompanied – and inform the employee of the final decision.
If the allegations are founded, then this would be classed as a summary dismissal and therefore the employee would not be entitled to any notice pay. They would however, be entitled to payment for any outstanding accrued annual leave.
Q:Just over 12 months ago I took on a very promising employee. As yet she has failed to meet expectations and although I don't want to dismiss her I feel like I am running out of options.
A:If you haven't already done so, arrange a meeting with the employee and explain your concerns regarding their performance. You should ideally have specific examples to demonstrate your concerns and allow them the opportunity to respond to your concerns. This should then identify any training or underlying issues. You may then instigate a performance improvement plan, which should incorporate measurable indicators and take place over a defined period of time with assistance and supervision. Regular reviews should be scheduled, however if the necessary level of improvement is not made, then you should consider dealing with this more formally through the disciplinary procedure.
QOver recent months one of my employees has stopped working to the standard that I have come to expect from him and this is giving me cause for concern. I'm unaware of any reason for this sudden change but if this continues I will be forced to consider dismissing him. Can you offer any advice?
A:If your employee has always performed well in the past there may well be a justifiable reason why his level of performance has suddenly dropped. This could be due to underlying issues either in the workplace or relating to his private life. You should consider arranging a meeting with him, voicing your concerns and allowing him the chance to confide in you – this would then provide the opportunity for you to offer support or if it is in relation to a work-related concern, to address this accordingly.
If this approach is unsuccessful and you wish to terminate employment, then you must ensure you are reasonable in the action taken. You may have to progress this through the levels of action in the formal disciplinary procedure; otherwise you could face a claim for unfair dismissal.
Empire HR provide commercially focused employment law and HR support service including a telephone advice line, HR Consultancy, employment tribunal insurance and health and safety support for businesses across Scotland. Empire HR can be contacted on 01224 701383 or at www.empirehr.com.
