Companies can’t just fire staff on a whim - employees have some protections that are important to respect.  

Acting in a fair way towards an outgoing team member will mean that you can not only hope to maintain a respectful relationship, but the company will avoid a case going to an Employment Tribunal (ET) and all that entails; paying compensation, incurring legal and other costs, damaging its reputation following a prolonged period of uncertainty whilst the company deals with the claim and potentially setting precedents for the future. 

A dismissal is fair so long as you follow a fair process and procedures, and that you dismiss for a fair reason. 

Reasons for fair dismissal are: 

• Redundancy:  either the role no longer exists; you require fewer people to do the same role; or the role is no longer available at the employee's location.
  

• Misconduct: the employee has behaved in a bad way. Dismissal could follow several previous warnings of misconduct, or the behaviour was so bad that it would be impossible to keep them in post (gross misconduct, such as theft).
  

• Capability:  the employee is not capable of fulfilling the requirements of their role, for example, because of their skill level. 

• Statutory bar: your company would be breaking the law by continuing to employ an employee with a statutory restriction, for an example, an employee who loses their licence to drive and driving is their sole role. 
  

• Some other substantial reason: circumstances that mean they are not fulfilling their contract, for example, if a person receives a prison sentence so they can no longer attend work.

If an employee is dismissed for anything other than these fair reasons, you run the risk of them making a claim against your organisation for unfair dismissal.  

Other potential claims against your organisation are wrongful dismissal and constructive dismissal. 

When dismissal could lead to a claim  

1. If an employee is dismissed for anything other than a fair reason or if the company does not follow proper processes and procedures, it runs the risk of a claim for unfair dismissal. Some employees will have employment protections depending on their length of service, for example, or if they have protected characteristics. Your HR department should advise further.
   

2. Every contract of employment stipulates a notice period and any deviation from that agreement by the employer could lead to a claim of wrongful dismissal.
   

3. If an employee feels it is impossible for them to continue working for the organisation due to the way they have been treated, they could make a claim for constructive dismissal (for example, an employee may claim they have suffered mental health issues because of the way they have been treated at work).

To establish a fair dismissal, you should be able to demonstrate that you have followed procedures set out by your company to the letter.

All companies, whether big and small, should have policies in place to guide you. Where this is not the case you should follow the ACAS Code of Practice on Discipline and Grievance at Work which covers dismissals.  

A disciplinary procedure enables an organisation to detail the standards it expects from its employees regarding their behaviour (conduct) and ability to do their job (capability). It should allow staff an opportunity to change or improve but it will also set out circumstances that could lead to dismissal, for example following a series of warnings without change or improvement). (See disciplinary and grievance guide for more information on this.)

These procedures should be reviewed and updated every year by your HR department.

Relevant manager behaviours

Following your organisation’s dismissal procedures fits with the desired behaviours of Being open, fair and consistent. These behaviours will help you demonstrate a fair, considered and respectful management approach. Exercise 1 offers a route to developing these behaviours. 

Although going through a dismissal process can be an emotional and tense time it’s vital that those representing the employer follows good practice to do the right thing: 

• Keep an open mind; never pre-judge an issue 
• Give the employee the right to respond 
• Keep detailed notes of all discussions  
• Give the employee a reasonable amount of time to improve 
• Ensure a full and thorough investigation has been carried out
• Deal with the issue in a timely manner; if there is a delay explain the reasons to those involved 
• Allow the employee to be accompanied by a colleague at any meetings 
• Ensure employees are aware of their right to appeal any decisions 
• Make decisions which are fair and reasonable based on the balance of probability.  

For a dismissal to be fair, it’s vital that you follow a fair process; this requires the company to: 

• Have detailed discussions with all concerned 
• Understand the details of the issue(s) 
• Put issues clearly to the relevant person 
• Keep detailed notes of all discussions 
• Allow the employee to have a companion at any meetings 
• Speak to any witnesses 
• Check emails, texts and CCTV and other evidence 
• Bear in mind extenuating or mitigating circumstances, length of service, and disciplinary record 
• Consider previous actions if/when a similar situation has arisen before 
• Inform the parties of your decision 
• Allow an appeal 

As a manager, you need to understand these aspects of the process to ensure that you comply with each of the requirements yourself and are confident the organisation has done so before making any decision to dismiss.  Where you are unsure or need greater clarity always take advice from HR.

Dealing with difficult issues such as poor performance, conduct, absenteeism, bullying or harassment which can culminate in dismissal will not be easy. It will inevitably lead to uncomfortable conversations and difficult choices. It is important that you recognise this and take advice at all stages. Not following due process in early discussions could lead to difficulties at a later stage and potentially an unfair dismissal claim. 

You may address the original issue, take time and care to resolve it, and end up with a much improved and engaged team member. Or taking the same route could still lead to dismissal. It is important to recognise that and ensure you take advice on this basis. 

Occasionally rather than dismiss an employee an organisation agrees to separate from the employee using a settlement agreement. This means the company makes the employee an offer prevents them from pursuing any legal claim. This is a difficult option that will involve taking advice, dealing with lawyers and negotiating terms. 

Whichever path you and your company decide, you will need to take advice from your HR Department, an HR consultant or employment lawyer to ensure you are fully aware of your options, the pros and cons and the right process to follow. 

Relevant manager behaviours 

Dismissing someone will be a stressful process not only for them, but for you and the rest of your team. Being able to take an objective and calm approach fits with the desired behaviour of Handling conflict and people management issues. Exercise 2 and Exercise 3 offer a route to developing these behaviours.