Dismissing an employee - a practical guide
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9 October 2009
Employers must be cautious when taking the decision to dismiss
an employee as such action may leave the employer open to wrongful or unfair
There must be a fair reason for the dismissal. The dismissal can
only be for a fair reason if:
- it relates to the employee's conduct;
- it relates to the employee's capability or qualifications;
- it is because of redundancy;
-it is because the employee has reached the normal retirement
- continuing to employ the employee would be illegal, e.g.
because the employee is a van driver and he has just received a driving ban; or
-it is for some other substantial reason. This is understood to
be a fair reason that does not fall under the other categories.
A dismissal for any other reason would be unfair.
Generally, employees must have been employed for one year before
they can bring a claim for unfair dismissal. However, certain types of
dismissals are deemed automatically unfair and employees are protected as soon
as they start work. These include dismissals for reasons connected to pregnancy,
parental leave, requests for flexible working and whistleblowing.
An employer may still be held liable even if there is a fair
reason for the dismissal if it does not follow a fair procedure when dismissing
the employee. The employer should consult the ACAS Code of Practice on
Disciplinary and Grievance Procedures.
The employer must also show that it has acted reasonably in
treating one of the fair reasons as a ground for the employee's dismissal. For
example, if the employee is found to be incapable of carrying out the job, the
employer should give the employee timeto improve and may even be required to
offer the employee appropriate training.
The employer should also ensure that it gives the employee his
or her full notice period or pays the employee a payment in lieu of their notice
period. An employer's failure to give adequate notice or payment in lieu before
dismissal is likely to result in a wrongful dismissal claim by the employee.
Corinne Day is a trainee solicitor who specialises in
information technology law and intellectual property law. She can be contacted
via e-mail on firstname.lastname@example.org
About the Author
Lawdit Solicitors offer services and
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agreements. We are experts in commercial law with a heavy emphasis on
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Article Published/Sorted/Amended on Scopulus 2009-10-16 19:59:59 in Legal Articles