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Dismissal procedures

We high­light the main prin­ci­ples involved in the dis­missal of employ­ees includ­ing some com­mon mis­takes that employ­ers make. If you are an employ­er in the Lanark­shire area we, at Rus­sell & Rus­sell, can pro­vide you with assis­tance or any addi­tion­al infor­ma­tion required.

Since April 2024, sev­er­al leg­isla­tive changes have impact­ed UK employ­ment law, par­tic­u­lar­ly con­cern­ing dis­missal pro­ce­dures.

The Employ­ment Rights Bill 2024 intro­duced unfair dis­missal pro­tec­tion from the first day of employ­ment, elim­i­nat­ing the pre­vi­ous two-year qual­i­fy­ing peri­od.

An employ­ee’s employ­ment can be ter­mi­nat­ed at any time but unless the dis­missal is fair the employ­er may be found guilty of unfair dis­missal by an Employ­ment Tri­bunal.

The Work­er Pro­tec­tion (Amend­ment of Equal­i­ty Act 2010) Act 2023, effec­tive from 26 Octo­ber 2024, intro­duced employ­er lia­bil­i­ty for third-par­ty harass­ment, such as by cus­tomers or clients, empha­sis­ing the need for pre­ven­tive mea­sures.

We set out below the main prin­ci­ples involved con­cern­ing the dis­missal of employ­ees includ­ing some com­mon mis­takes that employ­ers make. We have writ­ten this fact­sheet in an acces­si­ble and under­stand­able way but some of the issues may be very com­pli­cat­ed.

Pro­fes­sion­al advice should be sought before any action is tak­en.

The right to dismiss employees

Rea­sons for a fair dis­missal would include the fol­low­ing mat­ters:

  • the per­son does not have the capa­bil­i­ty or qual­i­fi­ca­tion for the job (this requires the employ­er to go through con­sul­ta­tion and/or dis­ci­pli­nary process­es)
  • the employ­ee behaves in an inap­pro­pri­ate man­ner (the company/firm’s poli­cies should refer to what would be unrea­son­able behav­iour and the busi­ness must go through dis­ci­pli­nary pro­ce­dures)
  • redun­dan­cy, pro­vid­ing there is a gen­uine busi­ness case for mak­ing (a) position(s) redun­dant with no suit­able alter­na­tive work, there has been ade­quate con­sul­ta­tion and there is no dis­crim­i­na­tion in who is select­ed
  • the dis­missal is the effect of a legal process such as a dri­ver who los­es his right to dri­ve (how­ev­er, the employ­er is expect­ed to explore oth­er pos­si­bil­i­ties such as look­ing for alter­na­tive work before dis­miss­ing the employ­ee)
  • some oth­er sub­stan­tial rea­son.

Claims for unfair dismissal

As there is now no required qual­i­fy­ing peri­od, employ­ees can make a claim to an Employ­ment Tri­bunal for unfair dis­missal with­in six months of the date of the dis­missal and if an employ­ee can prove that he/she has been pres­sured to resign by the employ­er he/she has the same right to claim unfair dis­missal or con­struc­tive dis­missal.

Details of claims need to be sub­mit­ted to ACAS for ear­ly con­cil­i­a­tion where the par­ties will be offered pre-tri­bunal con­cil­i­a­tion before pro­ceed­ing to a Tri­bunal. How­ev­er, there is no oblig­a­tion of either par­ty to take it up.

There are two lev­els of claim, depend­ing on the com­plex­i­ty of the case. There is the straight­for­ward claim where there is one claim per claimant or the more com­plex mul­ti­ple claims (includ­ing unfair dis­missal and dis­crim­i­na­tion claims)

If the claim pro­ceeds to Tri­bunal and the employ­ee wins his/her case the Tri­bunal can choose one of three reme­dies which are:

  • rein­state­ment which means get­ting back the old job on the old terms and con­di­tions
  • re-engage­ment which would mean a dif­fer­ent job with the same employ­er
  • com­pen­sa­tion where the amount can be any­thing from a rel­a­tive­ly small sum to a max­i­mum cap of 12 months’ pay, which will apply where the amount is less than the over­all cap. Where the dis­missal was due to some form of dis­crim­i­na­tion the award can be unlim­it­ed.

If the dis­missal is demon­strat­ed as being due to any of the fol­low­ing it will be deemed to be unfair regard­less of the length of ser­vice:

  • dis­crim­i­na­tion for age, dis­abil­i­ty, gen­der reas­sign­ment, race, reli­gion or belief, sex, sex­u­al ori­en­ta­tion or mar­riage and civ­il part­ner­ship
  • preg­nan­cy, child­birth or mater­ni­ty leave
  • refus­ing to opt out of the Work­ing Time Reg­u­la­tions
  • dis­clos­ing cer­tain kinds of wrong doing in the work­place
  • health and safe­ty rea­sons
  • asser­tion of a statu­to­ry right.

Statutory disciplinary procedures

The Employ­ment Act 2008 intro­duced the ACAS Code of Prac­tice which saw a change to the way employ­ers deal with prob­lems at work. It also saw the removal of ‘auto­mat­ic unfair dis­missal’ relat­ed to fail­ure to fol­low pro­ce­dures. Tri­bunals may make an adjust­ment of up to 25% of any award, where they feel the employ­er has unrea­son­ably failed to fol­low the guid­ance set out in the ACAS Code.

The ACAS Code of Prac­tice sets out the pro­ce­dures to be fol­lowed before an employ­er dis­miss­es or impos­es a sig­nif­i­cant sanc­tion on an employ­ee such as demo­tion, loss of senior­i­ty or loss of pay.

The ACAS Code does not apply to redun­dan­cy or expiry of a fixed term con­tract.

Standard procedure

  1. Employ­ers must set out in writ­ing the rea­sons why dis­missal or dis­ci­pli­nary actions against the employ­ee are being con­sid­ered. A copy of this must be sent to the employ­ee who must be invit­ed to attend a meet­ing to dis­cuss the mat­ter, with the right to be accom­pa­nied.
  2. A meet­ing must take place giv­ing the employ­ee the oppor­tu­ni­ty to put for­ward their case. The employ­er must make a deci­sion and offer the employ­ee the right to appeal against it.
  3. If an employ­ee appeals, you must invite them to a meet­ing to arrive at a final deci­sion.

There may be some very lim­it­ed cas­es where despite the fact that an employ­er has dis­missed an employ­ee imme­di­ate­ly with­out a meet­ing, an Employ­ment Tri­bunal will very excep­tion­al­ly find the dis­missal to be fair. This is not explained in the reg­u­la­tions but may apply in cas­es of seri­ous mis­con­duct lead­ing to dis­missal with­out notice. What this means in prac­tice awaits the test of case law.

Modified procedure

  1. Employ­ers first­ly set out in writ­ing the grounds for action that has led to the dis­missal, the rea­sons for think­ing at the time that the employ­ee was guilty of the alleged mis­con­duct and the employee’s right of appeal against the dis­missal.
  2. If the employ­ee wish­es to appeal against the deci­sion, the employ­er must invite them to attend a meet­ing, with the right to be accom­pa­nied, fol­low­ing which the employ­er must inform the employ­ee of their final deci­sion. Where prac­ti­ca­ble, the appeal meet­ing should be con­duct­ed by a more senior or inde­pen­dent per­son not involved in the ear­li­er deci­sion to dis­miss.

The only occa­sions where employ­ers are not required to fol­low the ACAS Code of Prac­tice are as fol­lows:

  • they rea­son­ably believe that doing so would result in a sig­nif­i­cant threat to them­selves, any oth­er per­son, or their or any oth­er person’s prop­er­ty
  • they have been sub­ject­ed to harass­ment and rea­son­ably believe that doing so would result in fur­ther harass­ment
  • because it is not prac­ti­ca­ble with­in a rea­son­able peri­od
  • where dis­missal is by rea­son of redun­dan­cy or the end­ing of a fixed term con­tract
  • they dis­miss a group of employ­ees but offer to re-engage them on or before ter­mi­na­tion of their employ­ment
  • the busi­ness clos­es down sud­den­ly because of an unfore­seen event
  • the employ­ee is no longer able to work because they are in breach of legal require­ments e.g. to hold a valid work per­mit.

Common mistakes that employers make

For many the reg­u­la­tions have caused some con­fu­sion and prac­ti­cal dif­fi­cul­ties. Some of the most com­mon mis­takes include:

  • fail­ure to invite employ­ees to dis­ci­pli­nary hear­ings in writ­ing or sup­ply ade­quate evi­dence before the dis­ci­pli­nary hear­ing. The stan­dard pro­ce­dure requires the employ­er to set out the ‘basis of the alle­ga­tions’ pri­or to the hear­ing
  • exclud­ing dis­missals oth­er than dis­ci­pli­nary dis­missals (e.g. ill-health ter­mi­na­tions)
  • not invit­ing employ­ees to be accom­pa­nied
  • not includ­ing a right of appeal
  • not appre­ci­at­ing the statu­to­ry require­ment to pro­ceed with each stage of the pro­ce­dure with­out undue delay
  • fail­ure to appre­ci­ate that an employ­ee may have right to appeal even if it is request­ed ver­bal­ly rather than in writ­ing and is after a timescale set down by the employ­er
  • not appre­ci­at­ing that pay­ing an employ­ee a low­er bonus for per­for­mance relat­ed rea­sons could poten­tial­ly amount to ‘action short of dis­missal’ by the employ­er
  • fail­ure to treat as a griev­ance any writ­ten statement/letter (e.g. a let­ter of res­ig­na­tion) which rais­es issues which could form the basis of a tri­bunal claim to which statu­to­ry pro­ce­dures apply. This means that the employ­er must be alert to issues being raised in writ­ing even if there is no men­tion of the word griev­ance.

How we can help

If you are an employ­er in the Lanark­shire area we will be more than hap­py to pro­vide you with assis­tance or any addi­tion­al infor­ma­tion required on dis­missal pro­ce­dures so please do con­tact us at Rus­sell & Rus­sell.