Firing staff properly can be a time-consuming process for small employers here in the UK, due to the legal procedures that can be lengthy and confusing. It’s no surprise that some employers find themselves in hot water, facing a potentially costly and unnecessary tribunal claim, because they’ve rushed through the process without due care and attention.
This blog post covers the four firing questions we are asked most frequently by small business owners and the advice our HR consultants provide to help you stay on the right side of employment law.
Summary dismissal – how can I sack staff quickly?
You can’t just shout “you’re fired!” like you’re on The Apprentice, this is sure to land you with a tribunal claim if you haven’t followed the correct process.
Firstly, your company’s staff handbook and employment contract should contain the relevant policies such as your disciplinary procedure and capability procedure, which your employee should have agreed to at the beginning of their employment.
If this is the case, you can proceed to terminate employment quickly if your staff member has committed gross misconduct.
To do this, you need to ensure you have sufficient evidence and that a thorough investigation has taken place. The next step is to invite them to a meeting to answer the evidence and give their side of the story. If they cannot dispute the evidence you have, you can terminate their employment without notice. This is known as summary dismissal. Of course, it’s always possible that the employee will have a different version of events, and so the decision to terminate employment must not be hurried and the outcome of the meeting could be something less than dismissal such as the start of a disciplinary procedure.
But, what exactly constitutes gross misconduct?
It’s a serious offence. It could be harassment, bullying, theft, the assault of an employee, or even a deliberate leak of vital company information. Anything that could put the company at risk of financial damages, or something that adversely affects the safety of your team.
Whilst issues of impropriety such as theft are not usually covered in contracts, they are ‘implicit’ to your agreement with staff. I.e. you trust that your employee will not steal from you, just as you would trust anyone else. You shouldn’t need it written down. Theft is illegal.
How do we manage poor performance if we can’t do a summary dismissal?
Poor performance is never enough for you to dismiss someone straight away and summary dismissal is not the appropriate course of action.
The correct course of action is to manage their poor performance instead, to ensure you aren’t accused of unfair dismissal. Just as in the question above, you should start by following the capability procedure as set out in your staff handbook.
To avoid confusion, a capability procedure relates to an employee’s lack of ability or skill loss of an essential qualification, a lack of capability due to ill health, or perhaps losing their driving licence. Literally, are they capable of doing the job?
Disciplinary procedures however relate to an employee’s conduct, and includes things like poor attendance and timekeeping, or as mentioned above can be gross misconduct such as theft or bullying. A simple way to decide is to consider the ‘can’t do v. won’t do’ principle – are they underperforming because they can’t do it, or because they simply won’t?
If you have got to the point where performance hasn’t improved, then you should have a formal conversation with the employee to let them know that you have concerns about their on-going employment. Having followed the capability procedure, you should have collected sufficient evidence to support your decision and provide this to the employee.
Once you have spoken to them and allowed them to give their version of events, set goals for how you’d like to see their performance improve. Then check back after a reasonable amount of time to see how they’re getting on – this could be a month, or even three months, depending on your business.
If their performance does not improve, then it might be time to start a disciplinary process.
What is the disciplinary process in full? Do I need to go through it every time?
If the employee is in their first two years, the statutory minimum is much simpler:
- Send them a letter to inform them you’re considering ending their employment
- Hold a meeting with the employee, so they can raise their concerns
- Make the decision, giving the right of appeal
The full disciplinary process though has nearly identical stages, with increasingly serious consequences for employees with more than two years’ service. This should be set out in the disciplinary procedure in your staff handbook.
- If you find that an employee’s conduct has not improved after you’ve raised the issue, and it is a situation where they simply won’t improve rather than can’t, then you should issue a first formal warning. This can be done verbally when you meet with them to discuss their conduct.
- After this, you should give the employee a reasonable amount of time to review and improve how they work for you. Hopefully this will mean you avoid another disciplinary meeting. Should it not improve, you will need to move to a formal written warning.
- Again, should their conduct not improve after a reasonable period, you can issue a final written warning. After this, if they still don’t improve, you may need to move to dismiss the employee.
Depending on the severity of misconduct, you can proceed to a formal, or final written warning if necessary. However you will have to collect evidence to prove the serious nature of the employee’s conduct, should you be challenged.
How do I fire employees legally, and avoid going to tribunal?
There’s no one-size-fits-all answer to this, as every company and every situation is different.
However, here’s a few tips that should help keep you on the right side of the law:
- Have you followed your own disciplinary procedure, and not rushed the employee through it? You should give a sensible amount of time for the staff member to improve – depending on the role, this could be anywhere from a month to three months.
- Have you taken notes and kept evidence of every part of the procedure? If someone asked, could you prove objectively that you had tried everything reasonably possible?
- Are you certain that you aren’t discriminating against someone with a protected characteristic? For example, should you make reasonable adjustments to help a disabled employee improve their performance? Remember, mental health problems such as depression and anxiety fall into this category.
- Have you remained emotionally detached from proceedings? If not, could you bring in someone else who is not emotionally invested in the employee to help you manage the process.
In essence, you need to be certain you have the necessary evidence to fire employees legally. And also that you have treated them fairly.
So, if they’re performing poorly, do you have sufficient evidence and have you given them time to improve before dismissal? Or, if it’s behaviour-related, do you have evidence that their actions have caused harm and can you prove that you’re not over-reacting?
Of course, this guidance won’t make you an expert at firing someone the right way overnight, but hopefully it gives you an idea of what is and isn’t acceptable. If you’re not sure what to do, always check with an experienced consultant. The time and cost of their advice will always pay dividends to help avoid a grievance or a tribunal.
We have CIPD qualified HR consultants at the end of the phone on 0333 444 0165 or you can email us on firstname.lastname@example.org.