In order to avoid the possibility of a claim for unfair dismissal, the dismissal of an employee must be for a fair reason and must be done by the employer following a fair procedure. Where an employee has two years, or more, continuous service, an employer must have (1) a fair reason to dismiss them and (2) follow a fair procedure to dismiss them.
The potentially fair reasons to dismiss are:
- Misconduct at work;
- Lack of capacity (or qualifications) to do the job;
- Redundancy;
- A statutory requirement;
- Some other substantial reason.
A fair procedure should be a procedure that is in accordance with the ACAS Code of Conduct.
In certain circumstances, the employer must also show that the decision to dismiss is within the range of reasonable responses (to a particular situation) available to an employer.
The correct notice period must also be given to the employee, to avoid the possibility of a claim for wrongful dismissal or breach of contract.
An employer must also carefully consider the practical impact of the termination of employment. For example, does the employee hold substantial confidential information? Is there a risk (such as competition) to the business by the employee leaving? Does the employer want the employee to comply with their restrictive covenants? Where risks or problems are identified the employer will need to consider what steps can be taken to minimise the risk or problem.
Our experienced team regularly advises on the circumstances where employment comes to an end and provides practical solutions to help to protect the business.
