What is a fair dismissal?
Here at S&G we have been discussing that not every employee you recruit will be a good fit for the business. It is therefore important to have a fair and reasonable dismissal process that ensures an employee is treated justly, consistently, and with respect while following legal requirements and the organisation’s internal procedures. Below are the general steps involved in a fair and reasonable dismissal process:
1. Clear Policies and Procedures
Ensure that your company has clear policies and procedures regarding performance, behaviour, and termination. Employees should be made aware of these rules through the employee handbook or contract at the start of their employment.
2. Reason for Dismissal
There must be a valid, substantiated reason for dismissal. These reasons generally fall into one of the following categories:
Misconduct (e.g., theft, insubordination, violence)
Poor performance (e.g., failure to meet performance standards)
Redundancy (job no longer needed)
Other substantial reasons (e.g., incapacity due to illness, breach of contract)
3. Investigation
Before considering dismissal, conduct a fair and thorough investigation. This should involve gathering evidence, speaking with relevant parties, and allowing the employee to explain their side of the story. The investigation should be unbiased and impartial to ensure the process is fair.
4. Employee’s Right to Respond
The employee should be informed of the issues or concerns that are leading to the potential dismissal and allowed to respond. This is an important step to ensure fairness and due process, and it typically occurs during a formal meeting or disciplinary hearing. The employee may also have the right to be accompanied by a colleague or union representative.
5. Consider Alternatives
Before proceeding with dismissal, consider whether there are alternatives. This could include:
Offering a performance improvement plan (PIP) if performance is the issue.
Providing additional training or coaching.
Considering a different role within the company.
Issuing a written warning or a final warning for misconduct.
6. Formal Meeting
If the matter proceeds to dismissal, a formal meeting (often a disciplinary hearing) should take place. At this meeting:
The employee should be informed of the reason for the potential dismissal.
Evidence should be presented, and the employee should have the chance to respond.
A decision should not be made immediately; it may take time for the employer to review all information.
7. Decision and Documentation
After the meeting, the employer should make a decision, which could range from dismissal to other disciplinary actions, such as a warning or suspension. The employer must document all steps taken, including:
Reasons for the dismissal.
The evidence considered.
The employee’s response to the issues raised.
The decision made.
8. Notice and Severance Pay
If the decision is to dismiss the employee, the employer must provide the appropriate notice period or pay in lieu of notice, as required by law or the employment contract. In some cases, severance pay may also be required.
9. Right to Appeal
Provide the employee with the right to appeal the decision. An appeal process should be available if the employee feels the dismissal was unjust or the process was unfair. The appeal should be heard by someone independent from the original decision-maker.
10. Final Documentation and Communication
Once the decision is finalized and the employee has been dismissed (or the issue is resolved), ensure the dismissal is clearly documented, including:
The reasons for dismissal.
The steps taken in the process.
Any appeals or outcomes.
11. Post-dismissal Considerations
After the dismissal, the employer should ensure that the employee's final pay, benefits, and any required paperwork (such as a reference) are provided in accordance with the law. Additionally, if the dismissal is related to misconduct or poor performance, the employer should consider whether the process could be improved in the future.
Key Principles of a Fair Dismissal:
Fairness: The reason for dismissal should be valid, and the process should be conducted fairly.
Consistency: The organization must ensure that similar cases are treated similarly, to avoid claims of discrimination or unfair treatment.
Transparency: Clear communication throughout the process is crucial.
Due Process: Employees must be given the opportunity to present their case and be fully informed of the concerns.
Right to Representation: In many jurisdictions, employees have the right to be accompanied by a colleague or union representative at meetings.
By following these steps, employers can help ensure that their dismissal process is both fair and legally compliant, while also safeguarding their business interests. If you have any doubts or questions relating to dismissal then please get in touch and Gemma will be happy to guide you through the process.