On what grounds can you dismiss an employee?

The decision by an employer to dismiss an employee is rarely an easy one, particularly if steps have been taken to avoid such an eventuality. However, sometimes dismissal is the only option, and as an employer, you must ensure your dismissal process is fair.  

Fair reasons for dismissal 

As an employer, you must be sure both that your procedures are reasonable and that your employees are aware of the process. You must also have a legally fair reason for dismissal, or you could find yourself looking at a potentially expensive employment tribunal case.  

Five reasons qualify as a fair reason for dismissal. 

1. Redundancy 

Redundancy due to business or workplace closure or staff restructuring is a fair reason for dismissal.  

ACAS provides clear guidance for the redundancy process. Make sure your employees understand the process, including consultations, a fair selection process and the pay calculation method.  

Dismissal will almost certainly be an unpleasant process for your employee. From the start, you must be open and honest. Even though your employees will find it a challenging time, by being straight with them, you're less likely to leave yourself open to an unfair dismissal claim.  

2. Conduct 

You should clearly define in your employee handbook and contracts your company's ethos and expectations of its employees. You must clearly identify what constitutes misconduct and gross misconduct.  

Misconduct from an employee is likely to be a series of behaviours or actions that result in disciplinary action. Perhaps your employee has received several official warnings following informal conversations about their conduct. Dismissing them on the grounds of misconduct can follow the remedial measures taken to try and resolve the issues.  

Examples of possible misconduct are –  

• Unexplained absences 

• Bullying 

• Harassment 

• Inappropriate behaviour 

Gross misconduct from an employee is more serious. A single act can result in fair instant dismissal without notice or pay.  

Examples of gross misconduct are –  

• Physical assault 

• Being under the influence of drugs or alcohol in the workplace 

• Theft 

• Sexually inappropriate behaviour towards colleagues 

• Causing a severe health and safety risk in the workplace  

If an employee's behaviour in our outside negatively affects their work or causes reputational damage to the company, then a fair dismissal can result. A good example is the inappropriate use of social media that contravenes the company's social media policy.  

3. Performance or capability 

Performance and capability are separate reasons for dismissal but can overlap. 

Performance relates to an employee's below-par standard of work. In this case, there are stages an employer is required to work through before dismissal. 

• A performance improvement plan (PIP) 

• Additional training 

• Support and progress reviews 

As part of the disciplinary process, you'll have to issue formal warnings before dismissing the employee.  

Capability is the employee's ability to do their job, which can include –  

• Skill set 

• Psychical health 

• Mental health 

• Aptitude 

Remember – if an employee's condition is classed as a disability, then dismissing them for that reason can constitute unlawful discrimination.  

As with poor performance, always take steps to resolve your employee's capability issues before proceeding with dismissal.  

4. Statutory illegality or breach of a statutory restriction 

If your employee can't continue in their job due to a statutory breach or it becomes illegal, a fair dismissal is allowed. For example, if your employee is subject to an enhanced DBS check and you discover they've committed a crime that affects their DBS status. Other reasons might be –  

• A breach of immigration rules 

• Losing a driving license required for a job 

• A subsequently discovered criminal record 

You must, however, still follow a fair process before release.  

5. Some Other Substantial Reason (SOSR) 

The reasons listed above are not exhaustive. Think about and be aware of what other situations might constitute fair dismissal for your company. They might include a significant conflict of interests or a fixed-term contract coming to an end.  

Fair's fair! 

To recap – Always have in place a fair and reasonable dismissal process and a fair reason for dismissal. Always try to resolve issues informally. When in any kind of doubt, take specialist employment law advice. 

Call the specialist employment lawyer 

Magara law is an employment law firm based in Bicester, Banbury and Paddington, London, and services clients nationwide. For more information or to speak with Roy Magara, a specialist employment lawyer at Magara Law, call 01869 325 883 or email roy@magaralaw.co.uk.