Top Ten Tips When Dismissing An Employee

Establish the facts of the situation
In particular please note that if you are dismissing an employee who has more than 2 years' service that employee has the right to claim unfair dismissal and that you will need to have both a fair reason and follow a fair process prior to reaching a decision to dismiss. The Lindsays team can be contacted on 0131 656 5643.

Have a fair reason
If an employee has over 2 years' service you will require a potentially fair reason for dismissing them. The Employment Rights Act 1996 provides the following potentially fair reasons exist:-

• Conduct,
• Capability,
• Redundancy,
• Legality, and
• Some other substantial reason.

Follow a fair procedure
The specific procedure will vary dependent on the reason for dismissal. Always take specialist advice when contemplating dismissals to ensure a fair process is followed and that this can be evidenced if necessary. Internal procedures should also be followed, providing these are legally compliant. Promptness and consistency play a large part in fairness.

Notify the employee of the requirement to attend a formal meeting
Write to the employee, giving them reasonable notice of the requirement to attend a formal meeting, providing details of the reason for the meeting and enabling them to fully understand and prepare to respond. Enclose all supporting evidence and provide the employee with details of any process which has been/will be followed. Make clear that that a likely outcome may be their dismissal.

Advise the employee of their statutory right to be accompanied at the meeting
This right entitles the employee to be accompanied by a fellow employee or a trade union official, though, in certain circumstances, you may wish to consider a wider range of companion. Consider postponement of the hearing on grounds that the preferred companion is not available on the scheduled meeting date.

Hold the formal meeting
Ensure the purpose and reason for the meeting is re-stated and understood and allow the employee the opportunity to fully state any response. The employer may question the employee if necessary to establish further details. Allow contribution by the companion where appropriate. Do not communicate any decision regarding any decision during the meeting or make any comments which indicate the outcome has been pre-judged and take full minutes.

Adjourn the meeting before decision is communicated.
After the meeting had been adjourned, consider carefully any submissions or comments made by the employee or their companion. Consider whether dismissal is within a reasonable range of responses to the circumstances.

Check any statutory or contractual obligations
Where dismissal will take place, check the contractual or statutory notice period the employee requires and whether it is a requirement/appropriate that the employee works their notice period. Calculate holiday pay due/owed and any further statutory payments e.g. statutory redundancy pay.

Confirm the decision in writing and advise of right of appeal
Advise the employee they have the right of appeal. The grounds for the appeal must be put in writing, along with the name of person they should appeal to and the timescale within which the appeal must be received.

Hear the appeal
Where an appeal is lodged, the person who hears the appeal meeting should, wherever practicable, have not been involved in the original decision to dismiss. Again, the employee should be informed in writing of the appeal hearing and of the right to be accompanied. The outcome of the appeal should also be communicated to the employee in writing.

Before dismissing any employee, irrespective of their length of service, it is advisable to ensure that the employee has no grounds to bring a claim against the company on grounds that they were dismissed for any discriminatory or automatically unfair reason, as the right to bring such claims are not restricted by the employee's length of service. Therefore specific advice in every instance is recommended.