Managing an employee dismissal is a task that no-one enjoys. But it’s a necessary part of business, and someone has to do it. Here’s how HR managers can effectively manage an employee dismissal without too much turmoil.
Employee dismissals are one of the most difficult parts of HR. You want the best for your employees. You spend time and resources to ensure that your employees are happy and working well. But, in business, having the right team is the secret to success. This means that, sometimes, uncomfortable decisions have to be made and people have to be let go.
For both the employee and the employer, a dismissal is an emotional experience. As the employer, it is integral that you keep the process professional to minimize potentially negative outcomes. The key is to maintain dignity and respect throughout. Failure to do so can lead to claims of unfair or constructive dismissals made against you. Your company could end up having to compensate the employee, or even end up in an employer’s tribunal.
If you’re faced with managing a dismissal, your first step is to understand your employee’s rights. The second is to follow an established procedure.
Step One: The Law
An employee may be dismissed for many different reasons. There are three main kinds of dismissal in the law:
- Fair dismissal
- Unfair dismissal
- Constructive dismissal
Knowing the difference between each one is key to managing a dismissal well.
What is a fair dismissal?
A fair dismissal is when an employee is dismissed for a valid reason. What constitutes a valid reason? There are five key categories that are considered justified reasons for dismissal:
- Capability: When an employee lied or exaggerated about their health or qualifications
- Conduct: When an employee acts in a way that is at odds with your company’s ethos or expectations
- Redundancy: When an employee is made redundant in accordance with pre-established policy
- Breaking the law: When an employee breaks civil or criminal law. This applies to whether the offense was made in or out of their work
- Any other reasons: This open category includes a spectrum of different reasons that must be supported by evidence
What is an unfair dismissal?
An unfair dismissal is a dismissal without fair reason. An employee can make an unfair dismissal claim if they feel that their termination was wrongful, or if the appropriate dismissal procedures were not followed. Claims of unfair dismissal can be emotionally charged. So, even if your grounds for dismissal are fair, you could still end up with a claim made against you.
The following should never be justifications for dismissal:
- Membership to a trade union or engagement with trade union activities
- Race, color, sexual orientation or age
- Different religious or political opinions
- Maternity leave, paternity leave, or force majeure leave
- Unreasonable selection for redundancy
- Any matters connected to pregnancy or childcare
If a claim is made against you, you will have to prove that your reasons for dismissal were justified.
What is a constructive dismissal?
A constructive dismissal is when changes to employment contracts force an employee to quit. Changes can include:
- Sudden pay decrease or demotion
- Unreasonable changes in work hours or activities
- Removal of agreed compensation packages
If a claim is made against you, you will need to show that changes to the employment contract were discussed before and fair notice was given.
Step Two: Dismissal Procedure Best Practice
Following an established procedure is essential. Procedures help to keep dismissals professional and regulated. They also protect your company against claims made against you.
A dismissal procedure should have three parts:
- Initial meeting
- Time for appeal
Before terminating an employment contract, you should arrange a meeting. The meeting is an opportunity to discuss any issues that have led to the potential dismissal. Sometimes, disagreements can be resolved by a measured and respectful conversation.
Follow these five steps to get the most out of a dismissal meeting:
- Give notice: You should give your employee at least 48 hours’ notice before the meeting. The meeting should take place at a convenient time and place.
- Be prepared: Before your meeting, collect tangible facts that support your dismissal decision. Make sure that these documents are well-organized and clear.
- Document, document, document: Everything you or the employee says or does must be written down. The documents from this meeting can be used as evidence if a claim is made against you.
- Remain professional: Don’t get emotional. Don’t make personal remarks about the employee. Stick to the facts.
- End well: An employee should never be asked to leave after the meeting. Remember: there are two more steps to go. The purpose of the meeting is to discuss the dismissal, not to enact it.
Time for appeal
Your employee may wish to appeal the dismissal decision. It is important to respect this part of the process. For best practice, leave a five-day window for the employee to appeal. Allowing this time will actually save time in the long run. Most claims are made when employees feel that they have been treated unfairly and haven’t had the opportunity to bring up their concerns.
You have had a meeting to discuss the problems. You have waited for the appropriate amount of time to pass for appeals. Your decision to dismiss your employee still stands, and the contract is terminated. At this stage, it is important to keep things amicable. Offer to write a reference for their next employment.
Ultimately, be kind and considerate of your employee’s feelings. Dismissals are difficult, but by following these steps, you can make the process much smoother.
Author: Lorraine McClue is a lawyer at Parslows Jersey law firm. Lorraine specializes in employment law and is involved in all areas of the firm’s work regarding contentious issues and claims in this area. Lorraine also regularly represents clients before courts and tribunals.