Deciding to dismiss an employee is often a difficult decision, but it may be essential if that employee has been underperforming, where misconduct is involved, or when business need dictates that they are no longer required.
It is vital that your organisation follows the correct employment law process from the outset, in order to protect your business from significant liabilities.
Legal claims arising from dismissal (whether redundancy or otherwise) include:
- Unfair dismissal (and any subsequent appeal).
- Wrongful dismissal.
- Constructive dismissal.
Where an employment tribunal determines that a dismissal is unfair, compensation is usually capped. However, in cases of discrimination or whistleblowing this is not the case, potentially exposing the employer to significant liabilities. Therefore, it is vital that businesses are protected by seeking expert employment law dismissal advice before taking action, as taking early steps to pre-empt issues is a great deal easier (and potentially less expensive) than dealing with an employment tribunal later.
Fair Or Unfair Dismissal?
For a dismissal to be classed as ‘fair’ it normally needs to be for one of these reasons:
- Related to conduct.
- Related to capability or qualifications for the job.
- For statutory reasons or restrictions prohibiting the employment.
- An alternative substantial justification.
- Genuine redundancy.
If you are considering dismissing an employee or making an employee redundant, consult Hine Legal before taking any action. This allows you to ascertain whether you have a legitimate reason to dismiss them, and to understand the correct process to follow.
Legitimate Dismissal Procedures
In employment law terms, following the correct process is very important. There are very specific dismissal procedures you need to follow to dismiss an employee. Should a case end up at an employment tribunal, when considering the arguments, the court will examine whether or not these have been followed when reaching an employment tribunal judgment.
Where there is concern over a particular employee, consult Hine Legal’s experts before taking any action. It’s often best to attempt to resolve matters informally before entering into any formal procedures, and we can advise on ways to handle this.
However, if informal channels have failed and you need to resort to a more formal process, we will provide user-friendly guidance on the steps you need to take.
Redundancy Rights and Fair Procedures
In the life-cycle of any business, it is possible that at some point there will be a need to make an individual, or possibly several people, redundant. There are highly specific employee redundancy rights and redundancy legislation which, as an employer, you must follow in order to minimise the risk of allegations of unfair dismissal or discrimination.
Under English employment law, following a fair procedure includes engaging in a redundancy consultation period, and providing the employee with their correct notice.
When making a position redundant by restructuring or otherwise, (particularly if by compulsory redundancy, as opposed to voluntary redundancy), it is usually advisable to consider other options first – such as natural wastage, restrictions on recruitment or redeployment.
Hine Legal’s experts will work with you to understand your business needs and situation, offering redundancy advice designed to assist you in exploring the options available.