An employee, with just five month’s service, is not performing well and the employer wants to dismiss him. Esther Smith and Matthew Whelan advise on the correct process to follow.
If a member of staff has less than one year’s service (only five months in fact), can we dismiss him without following a disciplinary process? He is simply not performing well. Moral considerations aside, can we legally call him into the office and tell him to go without giving him notice of the meeting or any chance to be accompanied?
Our disciplinary process does state: "The Company reserves the right to discipline or dismiss an employee with less than 12 months’ continuous service without following the Disciplinary Procedure."
I realise this is not best practice at all but legally could we do it?
Matthew Whelan, solicitor, Speechly Bircham
You are at liberty to dismiss the employee without following a disciplinary process although there are some risks involved in this.
As the employee has less than one year’s service the risks associated with a claim for ordinary unfair dismissal do not appear relevant.
The risk therefore is in relation to other claims that the employee may bring as, if you have not followed the ACAS Code of Practice (which sets out a procedure you should follow to dismiss someone for this reason), then you risk an uplift in compensation for certain claims of up to 25%.
If you dismiss someone for reasons related to certain things like trade union membership, health and safety or because the employee has “blown the whistle” then he does not need one year’s service to bring an unfair dismissal claim. He could also bring a discrimination claim as there is no service requirement. People sometimes argue a failure to follow a procedure is in itself an act of discrimination (whether this argument is valid very much depends on the circumstances).
You mention your disciplinary procedure. If your disciplinary procedure is contractual then a failure to follow it correctly may lead to a claim for breach of contract (although I note you state the procedure does not apply anyway as the person has under 12 months’ service). In addition if you breach the person’s contract in that or another way (for example by not paying their notice) then you will not usually be able to rely on the provisions of their contract – post-termination restrictions being of particular concern. You should also think about whether it is right to follow your disciplinary procedure. Some organisations have different procedures to deal with poor performance and you need to make sure you correctly classify/label the dismissal.
If you have a meeting with the employee then that may give rise to a right for them to be accompanied, depending on the nature of the meeting. If this right is not correctly observed the award is 2 week’s pay, although a week’s pay is currently capped at £350.
In short, the risks are lower if the person has under one year’s service and there are no circumstances which may lead to other claims such as whistleblowing or discrimination.
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Esther Smith, partner, Thomas Eggar
Yes, you can although you do need to appreciate that there are slight risks involved. Now that the statutory dismissal procedures have been abolished, there is no statutory obligation to follow a dismissal procedure (which technically applied irrespective of the length of employment but could only effectively be enforced by way of an unfair dismissal claim which for most purposes required a year’s service). However, if dismissing for a disciplinary reason there is an argument that you should be adhering to the ACAS code of practice on dealing with disciplinaries. However, again, a failure to adhere to this code of practice can only be enforced by way of an unfair dismissal claim.
Therefore if the reason for dismissal is poor performance, and is not in any way linked or associated with one of the grounds of dismissal for which an employee does not need a year’s service (e.g. pregnancy, health and safety) or a potential discriminatory reason, then you are pretty safe to dismiss with out adhering to any procedure. The caveat to this is if you have created a contractual obligation to follow your own internal procedure if dismissing for a disciplinary reason, but that does not appear to be the case here.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit www.thomaseggar.com.