Q. How do I fire someone and stay within the law?
A.Letting someone go can be a bit of a legal minefield, made more complicated by the distinctions between different types of dismissal and the various processes that apply. To put it simply, there are five reasons deemed fair cause for dismissal: capability, conduct, retirement, redundancy or a situation where it would be illegal for the employee to continue to work, such as a driver losing her license.
Each of these causes demands different actions on the part of the employer, with redundancy deemed distinct from firing and therefore requiring its own special procedures. But for all of them, Charlotte Pickering, an employment specialist at Ely Place Chambers, says: “The clear focus is on the need for employers to give employees sufficient notice and evidence of the alleged poor performance.” Fulfilling this requirement means that the employer must be sure to conduct a series of meetings and give the employee opportunities to appeal. But each circumstance puts slightly different obligations on the employer, so it is worth looking up detailed descriptions of the necessary procedures before beginning. Good sources for this information include the Advisory, Conciliation and Arbitration Service (ACAS) and the Department for Business, Innovation and Skills (BIS) websites.
In very serious cases of misconduct employers are entitled to dismiss the employee without notice. But Pickering warns that: “If you dismiss an employee without notice – that is, not paying them for their notice period – it can amount to a claim of wrongful dismissal if the conduct did not in fact amount to gross misconduct. Gross misconduct can be very difficult to define but the first place to look is the employment contract, which often sets out examples, such as drinking at work.” Trevor Bettany, a partner at Speechly Bircham, says it is particularly important to adhere to the correct procedures when dealing with anyone with a “protected characteristic” such as a pregnant woman. They have stronger grounds to accuse you of wrongful dismissal. He also stresses that you should go back to the contract you have with the employee to ensure that you have complied with everything you set out originally. Bettany says: “If you’ve said you will issue a formal written notice, make sure you print off the letter – don’t just send an email. You leave yourself open to criticism.”
Q. What is best practice?
A.Mike Emmott, employee relations officer at the Chartered Institute of Personnel says there are plenty of areas of best practice to consider: “Telling them face-to-face would be a start – not by email or text.” Offering the employee plenty of opportunity to discuss the situation with you and other employees will help ensure they understand why they are being let go.
Emmott also stresses the importance of “survivor care” – that is considering those employees who are not being let go in the case of redundancy. He says: “It is important that people who are staying on are offered a believable story so they don’t panic and fear for their jobs. It is also important to handle the process of the redundancy well since gossiping amongst the survivors can breed bad blood. Particularly if they believe that the selection process has been unfair.”