How to Dismiss Within UK Employment Law: Top 10 Tips

bigstock-Executive-firing-employee-in-o-13100480Times are tough for many businesses. It's a simple fact that you cannot afford to keep people:

  • Who are surplus to business needs
  • Who are not performing well
  • Whose attitudes towards the business are harmful

But you’ve heard that dismissing people is a legal nightmare, and could well leave you with an Employment Tribunal on your hands. Then there will be lawyers’ fees, disruption, wasted time and potential liabilities to cope with – oh dear.

You know you’re expected to act fairly, but what does that mean in practice?

Here are 10 tips to help you think and act in the best interests of your business and stay within the law:

1. Face the Risks

Business is about taking calculated risks. Yes, there are always legal threats when you dismiss someone, but consider the consequences of delaying or doing nothing. If there is a nettle causing harm to your business, it needs grasping.

2. Start Early

Reducing the legal risks usually takes time. If you wait until the situation is desperate before doing anything about it, you are bound to make costly mistakes.

People in the first one or two years of their employment with you have fewer employment rights. Use this to ensure you do not keep people who are unsuitable for the work that they are employed to do.

3. Honestly assess the facts

You need to be as objective as possible about your situation. What is the true nature of the problem? Is it…

  • Falling demand for your products or services leading to a reduced need for employees to carry out certain kinds of work (redundancy)?
  • Poor performance because of the inefficient way the business is organised (reorganisation and possibly also redundancy)?
  • Poor performance by some employees caused by lack of skills (capability)?
  • Poor performance by some employees because of poor attitude (conduct)?
  • Poor performance by some employees because of poor management or leadership?

You need to prioritise – the problem may well lie in a combination of factors, but you cannot tackle everything at once. Pick the most important factor and deal with that first.

4. Take a Balanced View

Will moving towards dismissals actually solve the problem? Could the issues be better resolved in other ways like strategy changes, new systems, technology or training?

Do YOU personally – or members of your senior team – need to make some changes to the way you operate? You might need some help to assess that question, but it is worth thinking about.

If changes to the organisation need to be made, could they be achieved by consensus? Would surplus people be likely to voluntarily accept severance terms if they were made available?

If you have answered these questions honestly before embarking on the route towards dismissals, you are far more likely to be able to justify your position if challenged.

5. Plan

In the absence of very serious misconduct, implementing fair dismissals takes time, patience and dogged persistence. The outcome is never certain – if it was, the dismissal would not be fair!

Draw up a plan of action, identifying who will be responsible for each action. Make sure enough time is allotted and contingencies are built into it. For example:

  • In cases of redundancy, you should:
  1. Identify the area to be downsized and the employees within that area
  2. Propose how you would go about selecting people for redundancy, as objectively as possible
  3. Consult with the potentially affected employees. For 20 or more potential redundancies there are specific rules on which you should seek specialist advice.
  • In cases of lack of capability, you should consider the skills or abilities that are lacking and the employee should be given a formal opportunity, time and support to improve over a defined period. They should be informed that failure to do may result in dismissal.
  • In cases of misconduct, there should be an investigation into the facts of any allegations. Specific conduct should be identified. Exactly how does a person’s poor attitude show itself and harm the business? You should give employees a formal chance to state their side of the story. If misconduct is confirmed, the employee should be given a clear formal warning that future conduct will be monitored. It should also be clear that any recurrence or failure to redress the issue within a set period may result in dismissal.
  • In a wide variety of situations, you may want to open up an off-the-record dialogue with the affected person, giving an opportunity to leave on an agreed basis. This should be kept separate from other discussions. The timing and conduct of such a dialogue requires careful planning, and specialist help is usually advisable.

6. Listen and be Human

Always allow people to have their say. Give them enough time and written information to prepare and present their side of the story, and allow them to be accompanied by a trade union representative (even if you do not recognise TUs) or colleague in any formal meetings.

In cases of redundancy, be seen to consult genuinely (such as about alternative ways to deal with the problem, the proposed selection criteria and any redeployment opportunities) before making any final decisions. Consider the human impact.

In misconduct and capability cases, be seen to give people a genuine chance to change their ways. Then, if they fail to change, you will be in a much stronger position to dismiss. If they genuinely succeed in changing, you have solved that particular problem.

In the case of dismissals for lack of capability or misconduct, allow the person a chance to appeal – if possible – to someone more senior.

7. Do Not Prejudge

Only make your decision after having listened to all the evidence, and having considered the alternatives. Do not say or e-mail anything to suggest that you have already made up your mind before that point – even if you have formed a preliminary view.

8. Be Consistent

Do not let personal likes or dislikes cloud your judgment.

Before making any decisions, pause and question whether there is any conscious or sub-conscious bias creeping in regarding factors such as age, disability, gender reassignment, marriage/civil partnership, race, religion or belief, sex or sexual orientation – If the person has raised some issue of malpractice in the business before, that can also affect decisions.

Is the decision genuinely based on solid, demonstrable grounds and completely untainted by any of these issues? If not, think very carefully before proceeding.

9. Communicate and Record

Keep clear, written records of the process that you are following and the legitimate reasons for your decisions.

Consider whether there are mitigating factors that should be taken into account, such as health problems or a bereavement. Communicate your reasons to the employee(s) concerned in writing.

10. Avoid Laying Minefields

Make sure that you and everyone in the management team is clear about the process, and does not say or e-mail anything:

  • To suggest any decisions have been prejudged
  • That is inconsistent with the legitimate reasons for any decisions

All relevant e-mails will be disclosable if a claim is made. A single inconsistent e-mail can easily blow the legs off your defence.

In Summary

A timely, honest, rigorous, balanced, consistent and human approach will serve you well. Yes, there are risks; but they are not insurmountable.

Of course, it is not possible to cover all the ground in one short article. Please let me know if you have any thoughts or questions by leaving a comment below.

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