Guide: Dismissing An Employee – Disciplinary Process And Procedure

Reasons to choose Wilson Browne

Their conduct at work (for example, they have filed a fraudulent expense claim or persistently arrive late at work).
Their capability to carry out their job because they lack the necessary skills required (for example, a sales manager has consistently failed to meet reasonable sales targets despite receiving additional support and training). Or because they are too unwell.
Their job is redundant (for example, if the workplace is closing). Do not use redundancy as an easy alternative to dismissing an employee for poor performance. The “redundant” employee could make a claim for unfair dismissal.
Their continued employment would be illegal (for example, the business has discovered that an employee’s immigration status does not permit them to work).
They are being dismissed for what is known as “some other substantial reason”, that is something not falling into one of the above categories but which nevertheless warrants dismissal, such as where the relationship between the parties has broken down.

Dismissing an employee for any reason other than those listed above will be unfair.

Always follow the correct procedure

Even if a business has established a potentially fair reason for dismissing an employee, it must still follow the correct procedure. Failure to do so could lead to a claim for unfair dismissal.
Generally, an employee must have completed a qualifying period of service before they can bring a claim for unfair dismissal. The qualifying period is two years.
However, certain dismissals are deemed to be automatically unfair and an employee is protected as soon as they start work. These include but aren’t limited to dismissals connected with:
Family reasons (e.g., pregnancy, maternity, paternity, parental bereavement leave, time off for dependents, etc.);
Health and Safety
requests for flexible working; or
whistleblowing

Check the employee’s contract

It is possible to dismiss an employee fairly but still be in breach of contract if the business has not given them the correct notice under their contract. A business does not want to take any action that could breach an employee’s contract because:

It may lose valuable protections in the contract such as post-employment restrictions (for example, stopping an employee from going to work for a competitor).
The employee may have a claim for wrongful dismissal in breach of contract (for example, if the business fails to give them their contractual notice period or pay a contractual bonus).

PILON clauses

A payment in lieu of notice (PILON) clause is a contractual right that enables a business to pay an employee a lump sum rather than require them to work out their statutory or contractual notice period.
Before terminating employment and making a PILON, the business should ensure that the individual’s contract of employment allows for termination in this way. If the contract does not allow for a PILON to be made, then it could be a breach of the contract to do so.
If a business decides to make a PILON, it must notify the employee that a PILON is being made to them in exercise of the employer’s contractual right to terminate the employment with immediate effect. Simply making the PILON will not be sufficient to bring the contract to an end.

Sickness Related Dismissal

Review and retain the correct documentation

If the business has a sickness or absence policy, make sure it is complied with.
Review the relevant provisions in the employee’s contract of employment pertaining to sickness absence and pay.
Keep confidential records of medical certificates, correspondence, telephone calls and meetings.

Conduct an investigation

Investigate the nature, extent and likely duration of the medical condition causing the absence. Ensure the business has the up-to-date medical evidence that gives a clear prognosis. Please not it is important to obtain consent from the employee outside of any contract of employment
If the absence is stress-related, refer the employee to the business’s stress policy (if one exists) or any counselling services that are on offer. Consider whether dismissal could be avoided by changing the employee’s role or duties.
If the absences are short-term and intermittent, the business should investigate whether there is an underlying cause (medical or otherwise). If necessary the business should follow a capability or disciplinary procedure, setting timescales for improvement and giving warnings where appropriate.
Maintain contact with the employee throughout the investigation, especially when the business:
- receives medical evidence;
- is considering what adjustments to make or whether an alternative position would be suitable;
- is contemplating dismissing the employee.

Disability and reasonable adjustments

Consider whether:

The employee is disabled under the Equality Act 2010 (relying on medical evidence as required).
Any adjustments to the employee’s duties or workplace would assist their return to work (or their taking less time off work if their absences are intermittent) and, if so, whether making those adjustments would be reasonable in the circumstances.
There is another job within the business that might be more suitable for the employee.

Review the alternatives to dismissal

Before taking the decision to dismiss, the business should consider:

The importance of the employee and the position they occupy in the business.
The impact their continuing absence is having on the business.
The difficulty and cost of continuing to deal with their absence.
Whether the business can avoid dismissing the employee (for example, by offering them an alternative position).
Their age, length of service and the circumstances surrounding the employee’s absence.
Any action that has previously been taken in relation to other employees in similar circumstances.
Claiming under the terms of any permanent health insurance (PHI) policy or ill-health retirement if the employee has been absent long-term and is unlikely to return in the foreseeable future.
Whether dismissal would have an adverse affect on any PHI entitlement the employee currently receives.
Reviewing the medical evidence to make sure it is up-to-date.

Make sure the correct procedure is followed

If the business has instigated a capability or disciplinary procedure and this has led to the decision business concluding dismissal may be appropriate, write to the employee inviting them to a meeting, making it clear that the business is contemplating dismissing them.
Provide enough information about the circumstances the business is taking into account and the possible outcomes to the meeting, to enable the employee to respond meaningfully
Hold a meeting with the employee and give them the opportunity to present their case against the dismissal.
Once concluded, confirm the decision in writing to the employee. The letter should:
- provide the reason for dismissal.
- confirm their last day of employment.
- give them the right to appeal the dismissal decision.
- ensure the employee’s contractual and statutory entitlements are met and that they receive the correct pay entitlement, including notice and holiday pay.
- If an appeal is subsequently submitted by the employee, hold an appeal meeting. In the same way that any outcome is communicated after the disciplinary meeting, confirm the appeal outcome to the employee in writing.

Contact our expert Employment Law Team today for a free initial discussion.