Before I became an employment solicitor, if someone asked me a question about how to dismiss an employee, I would have to shrug my shoulders and reply “I don’t know”‘.
Now, having spent 3 years at university, a year at law school, two years training and with 15 years experience as a solicitor, when someone asks me if they can dismiss an employee, I can look them squarely in the eye and with great confidence reply “It depends”.
Such is the nature of employment law. There are rules, exceptions to the rules and exceptions to the exceptions.
In order to answer an employer’s question about dismissing an employee, I need to find out more information. Here are 5 questions all employment solicitors should ask before advising on a dismissal.
1. How long has the employee been employed for?
This question is crucial.
If the employee has been employed for less than two years, they don’t have the right to claim ordinary unfair dismissal. The risks are much lower (although it’s not without its dangers). In most situations, the employer could just call them in, tell them they’re fired and there’s nothing the employee can do about it.
The employee is still entitled to their notice pay and other contractual entitlements, such as holiday, but they won’t usually be able to claim unfair dismissal.
When asking about length of service, don’t forget to ask about TUPE. Was the employee employed with a previous employer and then transferred to the current employer? Service with the previous employer will count towards their length of service. Some employers may overlook this issue if you simply ask how long the employee has been employed. As employment solicitors, we need to be dig a bit deeper.
2. What is the reason for wanting to dismiss the employee?
If the employee has been employed for under two years, the employer doesn’t need to be too concerned about having a fair reason to dismiss because the employee doesn’t have the right to claim unfair dismissal.
However, there are some claims that the employee could bring which don’t require two years’ service, most notably a claim for discrimination. You need to determine whether there’s a risk of the employee claiming that they are being dismissed because of a protected characteristic, such as their:
- racial background
You can see a full list of the protected characteristics here.
If the employee has been employed for over two years, the risks of dismissing them are much higher. They have the right not to be unfairly dismissed. If the employer doesn’t get it right, the employee could bring a claim for compensation.
There are only six potentially fair reasons for dismissing an employee and you will need to consider whether the reason given by the employer is one of them.
3. Can you send me a copy of the employment contract, staff handbook and any other relevant documents?
As an employment solicitor, I want to see the contract before I give advice. After all, this sets out what the employee is paid to do.
Ideally, I also want to read the job description and any targets that have been set, particularly if the employee has been falling short of agreed benchmarks.
The staff handbook (which may or may not have contractual force) should include disciplinary rules and procedure. The employer should make sure they follow the procedure. It’s surprising how many employers have a well drafted disciplinary procedure but forget to refer to it when the time comes.
4. Have you considered a settlement agreement?
A disciplinary procedure is hard work and potentially demoralising and expensive.
There is an alternative. The employer may be able to shortcut the whole procedure by agreeing a settlement agreement with the employee.
Although some employers may feel that this is giving in and rewarding the employee for their shortcomings, most employers will be able to take a commercial view and recognise the benefits.
As an employment solicitor, you may need to explain to the employer how and when to have an off the record conversation with the employee.
Once you’ve got the answers to these questions, you’re well placed to advise the employer.
Are you an employment solicitor? Would you like to offer some tips of your own?
If you make your living from advising employers about disciplinary and dismissal procedures, what tips would you like to offer to your fellow employment lawyers?
Let me know. Leave a comment below . . .