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You are fired

It's not impossible to dismiss an employee, but great care should be taken to avoid ending up at a tribunal. Dismissing employees should be the last resort. To dismiss fairly you need a combination of one of the five potentially fair statutory reasons and a disciplinary procedure that is fair and reasonable:

  • conduct or behaviour

  • capability or qualifications for the job

  • redundancy

  • breach of a statutory restriction (such as employee working illegally)

  • some other substantial reason (such as a restructure that is not a redundancy).

If a business doesn’t have one of these reasons, then the dismissal will be unfair, even if the disciplinary procedure was correctly followed. If the business has one of these reasons then they need to follow the disciplinary procedure, before dismissing.

Once one of these reasons has been established, it must act reasonably, and be seen to do so, before dismissing.

To follow a fair procedure the employer has to:

  • Investigate fully before holding a disciplinary hearing.

  • Allow the employee to be accompanied by a colleague or trade union representative.

  • Give the employee any evidence gathered and time to prepare for the hearing.

  • Give the employee the opportunity to give their side of the story and to challenge the evidence.

  • Consider alternative penalties – any penalty should reflect the seriousness of the act.

  • Act consistently (as with previous similar incidents)

  • Act reasonably and fairly

  • Give the employee the opportunity to appeal against written and final warnings.

All businesses should have their own disciplinary policy and procedure which follow the ACAS code of practice.

Employees with less than two years’ service do not have unfair dismissal rights, apart from exceptions generally around equality and discrimination.

Dismissals are classed as 'automatically unfair', regardless of the reasonableness, if an employee is exercising specific rights to do with:

  • Pregnancy or maternity leave

  • family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants

  • representation: including acting as an employee representative

  • trade union membership and union recognition

  • part-time and fixed-term employees

  • pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage

For more information on disciplinary and grievance procedures contact Nichola Coulthard at or visit the website for Coulthard Human Resources

Human Resources is our business leaving you to focus on yours.

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