Some common dismissal situations and your legal position
A claim for unfair or wrongful dismissal, or unlawful discrimination, is worrying and time-consuming, and can be costly to your business. There is the morale of your staff to think about, and your reputation – with customers and suppliers – may be at stake.
Here are eight examples of common reasons you might consider dismissing an employee, and an assessment of your likely position in each case.
However, each case depends upon its own facts, and these are no substitute for specific advice, tailored to your particular circumstances, so always take advice before dismissing an employee.
1. He’s a poor time keeper
Poor time-keeping is likely to constitute either a performance or a misconduct issue, and both are potentially fair reasons for dismissal. But you must still apply a fair procedure, which might include regular appraisals (with time-keeping issues being addressed), early warnings, providing the employee with a timescale for improvement, and obtaining medical evidence if there is any risk that the problem has a medical cause. If there is a genuine reason for poor time-keeping, such as a disability, you may be obliged to make ‘reasonable adjustments’ to accommodate the employee.
2. They are useless at their job
Poor performance is one of the potentially fair reasons for dismissal. However, to demonstrate that you have behaved in a fair and reasonable manner you may have to show you conducted regular appraisals (to identify weaknesses at an early stage), issued early warnings with a set time to improve, set realistic targetsand if necessary offered training and/or supervision to address problem areas.
3. They lied about their qualifications or experience
If the employee has knowingly misstated details about his qualifications or experience, this would be likely to count as ‘some other substantial reason’ to justify dismissal.
If, however, the qualifications are desirable rather than necessary, and particularly if the employee has been doing the job satisfactorily without them, it may be unfair to dismiss. So if you want and need an employee to have qualifications and/or a certain type of experience, make your job offer conditional on them, and check up on them before you confirm the employment.
As in any other disciplinary case, you need to ensure that you observe any written disciplinary procedures that you have, and that, in any event, the procedure you follow is equivalent to (or better than) the statutory minimum disciplinary procedures introduced in 2004.
4. They don’t have a work permit
It is illegal for you to continue to employ them, and you risk an unlimited fine if you do so. However, they may still have protection against unfair dismissal (if either her contract states or a court finds that the governing law is English, and she meets the qualifying conditions under English law). So make sure your procedures are equivalent to (or better than) the statutory minimum and that you observe them before dismissing her. You might also try consulting the Overseas Labour Service, to see if any steps can be taken to rectify the illegal status.
Consider making all future job offers conditional upon employees having the right to work in the . But don’t try to avoid prosecution by refusing to consider for a job anyone who looks or sounds foreign. That might count as unlawful discrimination on the grounds of colour, race, nationality or ethnic origin or even religious beliefs. Checks to ascertain whether potential employees are entitled to work in the must be carried out in a consistent and non-discriminatory manner, and all job applicants must be treated in the same way.
5. They refuse to wear appropriate clothing
If the employee is representing the company in dealings with customers or suppliers, or appropriate clothing is required for health and safety reasons (for example by the need for short hair or hair coverings in places where food is prepared), you can probably dismiss them. If they are working behind the scenes, dismissal would be far riskier.
Beware of being discriminatory on the grounds of sex (for example by requiring men to wear a shirt and tie while women may wear T-shirts), or on the grounds of race, ethnic origin or religion (for example, by requiring formal business dress and refusing to allow employees to dress according to their race, ethnic origin or religion).
6. They have been off sick, long-term
Incapability is one of the potentially fair reasons for dismissal. But first you need to consider whether the employee’s ill health amounts to a disability under the law. If so, you must either be able to show that your treatment of him was for reasons unconnected to his disability, was not on the grounds of disability or that such treatment was justified because the reasons for it are material to the case, and substantial.
You also need to show that the reason for the dismissal cannot be removed by a ‘reasonable adjustment’ to the employee’s working conditions. Otherwise it is discrimination.
If the employee is not disabled, but suffers from long-term ill health, an Employment Tribunal would certainly expect you to do everything you can to keep him on, if necessary including an offer of alternative employment. However, if — after consultation with the employee and a medical investigation — there is no prospect of him returning to work, and you cannot keep the position open indefinitely, you may be able to dismiss on the grounds of ‘incapability’.
To avoid a successful claim for unfair dismissal, you must be able to show that you acted reasonably in treating the absence as a reason to dismiss, and that you acted fairly before dismissing. Take legal advice before you do anything.
7. They’ve been sentenced to a prison term
Be careful. Great care should be exercised, and legal advice should be sought. The fact that the employee is in prison and therefore cannot do his job is not in itself enough: it may ‘frustrate’ the contract, but as a general rule Employment Tribunals are reluctant to decide that the contract of employment has ended just because of the employee’s inability to perform it.
If, however, the employee’s offence was related to their work, a dismissal would probably be fair on grounds of conduct. Alternatively, the circumstances of the imprisonment might be such as to reflect adversely on the image of your business, and/or destroy trust and confidence in the employee, which might count as ‘some other substantial reason’ for dismissal.
You should still carry out such investigations as are reasonable in the circumstances before making any decision to dismiss. Such investigations must be carried out promptly to ensure that any dismissal is fair.
8. She’s pregnant
You cannot sack employees for being pregnant but, in theory at least, the fact that an employee is pregnant should not stop you from sacking her for one of the five fair reasons. But be very careful. You need to be very certain that her behaviour cannot be attributed to the pregnancy (which might, for example, be a cause of poor timekeeping — because of morning sickness — or absenteeism). You should conduct a thorough investigation and ascertain the facts before taking any action against her. Take advice.
