Kick-starting a new series that cuts the jargon and gets to the heart of employment law is Mark Hunt, head of employment at Reed Smith who looks at the legalities of giving an employee the boot for reasons other than performance.
The bottom line is that all employees in the UK have rights. They have rights in their contracts of employment (which may be in writing or may be verbally agreed or implied by virtue of custom and practice). Often that contract will specify what notice is to be given by you (as the employer) to lawfully terminate the contract. However, in addition to contractual rights employees also have various statutory rights.
Statutory rights include the right not to be unfairly dismissed (which applies in most cases after an employee has been with you for a year) and the right not to be discriminated against on various grounds (which applies regardless of length of service). Therefore, before dismissing someone for any reason, you must ensure that you at least understand what, if any, rights that employee may have in the circumstances and what you will need to do to minimise the risk of breaching any of those rights if you do go ahead and dismiss.
This question raises many potential risks and in order to be able to answer it, further questions need to be asked in return. These include:
- Why does no one like this person?
- What, if anything, has already been done to address the issue?
- How long has this person been employed by you?
- What does their contract of employment say about termination?
If the reason that no one likes an employee is directly or indirectly because of their race, nationality, sex, religion or belief, disability or sexual orientation, the fact that they work part time or on a fixed term basis or (from October this year) because of their age, then dismissing them will constitute unlawful discrimination on the relevant ground (and will almost certainly be an unfair dismissal). This will expose you to a possible award being made against you of unlimited compensation.
If, however, the reason that no one gets on with the employee is not for one of the reasons outlined above (i.e. they don’t pull their weight, they are a bully or for some other reason that could not be construed as one of the factors referred to above), then it may be possible to dismiss the employee without incurring significant cost. The statutory right that you will have to worry about will be limited to the right not to be unfairly dismissed.
There are five fair reasons for dismissal and an employee will only be able to claim that they have been unfairly dismissed if they have worked for you for a year or more.
So, if the employee has been with you for less than a year, as long as you give them the relevant period of notice specified in their employment contract and they leave before the first anniversary of their start date, that should be the end of it. If they have been with you for more than a year, however, things are more complex.
One of the five fair reasons for dismissal is a catch-all “some other substantial reason”. It has been accepted that dismissing someone because they do not fit in and are unpopular with other workers does fall under that heading.
However, to dismiss someone fairly in such circumstances, you would need to demonstrate that you had thoroughly investigated the alternatives to dismissal (i.e. re-deployment or tackling the root cause of their unpopularity and had consulted fully with the employee concerned) and that the decision to dismiss was a reasonable one in the circumstances.
Failure to do so will expose you to the risk of a successful unfair dismissal claim, which could result in an order that the employee is re-employed by you or that you pay the employee compensation of up to £67,100.
The alternative solution, of course, would be to dismiss the person anyway in accordance with the terms of their contract and then settle whatever claim they may bring (if any) with an appropriate amount of compensation and a binding settlement agreement.