What is unfair dismissal?
If you want to fairly dismiss an employee, you first need to pick one of five potentially fair reasons for dismissing your employee. These reasons are: capability or qualification; conduct, redundancy; because you would break the law if you continued to employ that employee; and some other substantial reason.
Once you’ve chosen your potentially fair reason, you must then follow a fair procedure to dismiss your employee. The procedure that you follow will depend on the reason you’re looking to sack the employee. So, for example, if you’re making them redundant you need to look at how you’ve selected them for redundancy, consider any alternatives that there may be and consult with your employee. Or, if you’re dismissing them because of their conduct, you’ll need to make sure you investigate the allegation thoroughly, let the employee explain what happened and then consider whether the misconduct was something they should be sacked for.
Unfair dismissal only applies to employees, it doesn’t apply to workers or those who are self-employed. In addition, employees need to qualify for the right by working for the same employer for two years or more (although there are some exceptions to this rule, such as where the employee has been dismissed because they raised a health and safety issue or blew the whistle).
We need to sack one of our employees. How can we avoid a claim for unfair dismissal?
To avoid your employee succeeding in a claim for unfair dismissal, you need to make the dismissal ‘fair’. To fairly dismiss an employee, you first need to select one of five potentially fair reasons for the dismissal. The five reasons are:
- Capability or qualification – this includes poor-performance and ill-health dismissals.
- Conduct – including dismissing an employee for accumulating several warnings or because they have committed an act of gross-misconduct.
- Because continuing to employ the employee would break the law; and
- Some other substantial reason justifying dismissing the employee – this is a broad catch-all category and includes, for example, the situation an employee has a personality clash with their manager.
Once you’ve chosen your potentially fair reason, you then need to follow a fair procedure before you dismiss your employee. The procedure that you follow will depend on the reason you’re looking to sack the employee. So, for example, if you’re making them redundant, you’ll need to look at how you’ve selected them for redundancy, consider any alternatives that there may be and consult with your employee. Or, if you’re dismissing them because of their conduct, you’ll need to make sure you investigate the allegation thoroughly, let the employee explain what happened and then consider whether the misconduct was something they should be sacked for.
Only employees have the right to claim unfair dismissal. Workers and those who are self-employed don’t have a right to make such a claim. In addition, employees need to qualify for the right to claim unfair dismissal by working for the same employer for two years or more (although there are some exceptions to this rule, such as where the employee has been dismissed because they raised a health and safety issue or blew the whistle).
If you can show that you have a potentially fair reason to dismiss your employer and you’ve followed a fair procedure, then you should be able to dodge a claim for unfair dismissal.
Should we manage our employee’s poor performance through a disciplinary or capability procedure?
Which procedure you choose depends on whether your employee’s under performance is down to their inability to perform or because of their misconduct. A simple way of looking at it is, if they can’t do their job as well as you’d like them to because they don’t have the skills, then you should use a capability procedure. But, if they’re not performing because they have chosen to act in a particular way, then you should use a disciplinary procedure.
Sometimes it may be difficult for you to decide which procedure to use. In this case go with the one you think is right. The chances are, as long as you make it clear to your employee what the allegation is, which procedure you’re following and why you’ve chosen that procedure, your decision is unlikely to be criticised.
What do we do if one of our employees goes off sick while we are disciplining them?
The first thing you should do is to consider the nature and seriousness of the employee’s illness. You may need to get medical evidence about the employee and their condition to help you with your decision. This can include asking their GP to comment on whether they’re fit to attend a disciplinary hearing or obtaining an occupational health report for guidance on the best way forward.
When you make your decision, you’ll need to strike a balance between the importance of the disciplinary proceedings and the employee’s wellbeing and recovery. There are many factors that you need to take into account when making your decision. But, as a general rule, if the employee’s illness is short term then you should most likely postpone the meeting until your employee returns to work. If, however, their illness is long term and the disciplinary matter is pressing, you may wish to hold the hearing without them being there and get them to let you have a written statement instead.
You should also make sure you’re considerate towards any of your employees who have a disability. You’re required to make reasonable adjustments for disabled employees so they’re not at a disadvantage, for example you can choose to postpone the meeting, hold the meeting at a neutral location, allow a companion such as a family member or a mental health support worker, or allow regular beaks during the meeting.
Do I need to let everyone see my family friendly policies?
That said, it is sensible for you to have comprehensive family friendly policies. These can either be separate policies or form part of your staff handbook. Ideally, they will include information about what your employee should do if they’re having a baby or they’re looking to adopt a child. And, even though you aren’t required to publish them, there isn’t much point having the policies if your employees can’t access them. So, you’ll probably want to place your policies where they can be easily accessed by your employees, for example on your business’s intranet or in your employee handbook.
Things may change in the next few years though because the government is holding a consultation on whether they should introduce a law requiring employers to publish their family friendly policies. The plans, as they currently stand, would require employers with more than 250 employees to publish details of their family friendly policies, including details regarding pay. It appears the plans would cover policies such as maternity, paternity, adoption, shared parental and parental leave, and possibly flexible working. It’s likely that that the requirement will then filter down to smaller businesses.
Do we need to pay for our employees’ eye tests?
On top of paying for the eye test, if a test reveals that the employee requires particular lenses to use display screens, you have to pay for the cost of the minimum spend for the required frames and lenses.
Do we have to give an ex-employee a reference?
Most employers just give a basic reference containing the employee’s start date with them, their end date and a description of their work or job titles while they were employed.
We have an employee who is stealing from us, can we make them redundant?
This isn’t a redundancy situation, it’s a conduct issue. You can, of course, dismiss an employee because of their misconduct if it’s serious enough (which stealing is almost certainly going to be). Dressing up this employee’s dismissal as a redundancy rather than a conduct dismissal may lead to difficulties because they’re not actually redundant and, in going down the wrong route, you will probably not investigate the matter properly or follow a fair procedure.
That said, if the employee hasn’t worked for you for two years then they probably can’t bring an unfair dismissal claim against you. So in this situation you won’t need to worry about what you call the dismissal or about following a fair procedure.
If you want to dismiss the employee but you don’t want to have to go down a disciplinary route then maybe think about offering them a settlement agreement, which could be a win for both parties.
What sort of things do I have to think about before I make someone redundant?
Redundancy can be a difficult task for employers and there is no one size fits all procedure. But here are some alternatives to redundancy that you should consider (and maybe put into action) before you make anyone redundant.
- Restrict or reduce external recruitment and consider whether a vacancy can filled internally before advertising externally.
- Reduce overtime where you can. It is easy to stop non-contractual overtime because your employees are not contractually entitled to do it. But, you can also restrict contractual overtime it’s just that you will either need to give notice to do it or get the employees concerned to agree to it.
- Redeploy or retrain employees. This may be useful if one part of your business is quiet and another part is busy.
- Restructure your business. This may result in a change to employees’ roles but means that everyone who wants to, gets to keep their job.
- Introduce flexible working and job sharing to save money. Some employees may want to work fewer or different hours and may take away or reduce the need for you to make redundancies.
- Offer unpaid sabbaticals, career breaks and secondments to reduce wage costs for a fixed time. This only really works if you think work will pick up relatively quickly. That said, it does give you the benefit of keeping hold of your skilled and experienced employees so you’re ready to go when things get better.
- Offer early retirement/voluntary redundancy packages. You should be a bit careful with this if you decide to do it because you might find that the package you offer is inadvertently discriminatory (does it favour one particular age group more than another and/or one sex more than another). There is also a cost to your business of offering incentive packages because by their very nature they need to be more than the package the employee would get if they didn’t take the incentive.
- Give employees the right to ‘purchase’ more holiday or force them to take holiday. Both of these can help with short-term blips by reducing the hours and employee works and, in the case of a holiday purchase, reducing the wage bill as well.
This is not an exhaustive list and many of the examples on the list may not work for you. But if you at least consider them and any others you can think of you may be able to reduce the number of employees you need to make redundant.
Can we stop my employee making a claim against us?
Can I just get rid of an employee I don’t like?
The answer to this question largely depends on how long the employee has worked for you.
You really shouldn’t just sack an employee if they’ve been with you for two years or more. If that’s the case, then you need to either (1) have a fair reason to dismiss them and then follow a fair procedure or (2) offer them an incentive to leave and wrap it up in a settlement agreement. If you don’t take either of these routes it’s likely your employee will be able to bring a claim against you for unfair dismissal.
If your employee has been with you for less than two years, then you don’t need to follow a fair procedure if you give them notice before they reach the two year mark. That said, this isn’t entirely risk free and the employee could still bring a claim against you for discrimination if you dismissed them because of their race, sex, marital or civil partnership status, gender reassignment, age, religion or belief, sexual orientation, pregnancy or disability. They can also bring a claim for unfair dismissal if the reason you dismissed them is one of the ‘exceptions’ to the two-year rule. These include such reasons as dismissing someone because they blew the whistle of raised a healthy and safety issue.
We didn’t have a contract of employment ready for a recent new starter. They weren’t happy about this and said they were entitled to one when they started. Is this right?
Strictly speaking you don’t have to give your employees a contract of employment. However, on or before they start work with you, you do need to give them a statement of terms, which sets out the main terms. This principal statement will cover:
- The employer’s name;
- The employee’s name;
- Their job title or a description of work they will be doing;
- Their start date and any previous work that counts towards their continuous service;
- How much and how often they get paid;
- Their work hours and days of work and if and how they may vary;
- Their holiday entitlement (and if that includes public holidays);
- Their place of work and whether they might have to relocate;
- How long a job is expected to last (and what the end date is if it’s a fixed-term contract);
- How long any probation period is and what conditions are attached to it;
- Any other benefits they are entitled to (for example, childcare vouchers and lunch);
- Any training they must attend and whether or not this is paid for by the employer; and
- Whether they have to work abroad for more than a month and, if so, for how long, what currency they will be paid in, any additional benefits they will get and the terms relating to their return to the UK.
On the first day of employment you will also need to give your employee information about:
- Sick pay and procedures;
- Other paid leave (for example, maternity leave and paternity leave); and
- Notice periods;
But you can do this by putting the information in the principal statement, in separate statements or on your intranet.
You also have to give information about pensions and pension schemes; collective agreements; disciplinary and grievance procedures and any right to non-compulsory training but you have two months from your employee’s start date to do this.
Do my employees have the right to go home if the office gets too hot?
Can my employees insist they have bank holidays off?
Are my employees entitled to overtime if they work bank holidays?
If your employee works on a bank holiday, they don’t have any right to extra pay unless you give them that right. So, the first place to start is their contract of employment. If your employee doesn’t have any clause in their contract saying that they have the right to extra pay for working on bank holidays, then you only have to pay them at their normal rate of pay. That said, if your employees have the right to take time off on bank holidays and you’re trying to ‘persuade’ them to work on a bank holiday, you may need to offer them additional pay as an incentive.
Can I end a fixed-term contract early?
Two of our employees have got together in a relationship, do we have to do anything?
Encouraging your employees to get to know one another socially as well as professionally is a good idea because close working relationships can result in a much happier and more productive workplace. This may, however, inadvertently lead to the development of more than just a professional relationship. A romantic relationship of this sort may be fine, or it can be a distraction for the employees involved and their colleagues.
You don’t have to do anything if you discover an office romance, but you may wish to do so to preserve your reputation or to avoid a conflict of interest. If you decide to take action, then you have to be careful not to discriminate against one of the parties. For example, moving a female employee to a different team because she is female, younger and less senior, could amount to discrimination on the basis of sex as well as age. If you want to do something, then you should talk to both parties and agree a way forward. This may involve a change of manager or, alternatively, procedures being put in place to deal with such matters as pay reviews where one party reports into the other.
You can have an “office romance” policy, which sets out clearly what should happen if two people get into some sort of relationship.
Do I have to allow an employee to work part-time?
You don’t automatically have to allow any of your employees to work part-time. But, if your employee has been with you for more than 26 weeks and they haven’t made a request to work flexibly within the last 12 months, then you do have to look into any request they make to work part-time. This is because part-time working is a form of flexible working and there’s a legal requirement for you to consider such a request.
If an employee makes a request you have three months to consider it (unless otherwise agreed), discuss it with them at a meeting and notify them of the outcome. When you consider the request, you can either agree to it or refuse it. If you want to refuse the request, you’ll need to justify this by relying on one or more of the set reasons for refusal. These reasons include: the extra cost involved; that it will have a detrimental effect on your ability to meet customer demand; because you can’t reorganise your work amongst existing staff, because you can’t recruit additional staff to cover the work; that it will detrimentally impact quality or performance or that you have a planned restructuring coming up. If you can’t show one of these reasons apply, you’ll either have to accept the request or risk facing an Employment Tribunal claim.
If there is an additional Bank Holiday announced, do we have to let our employees have this day off as paid holiday as well?
Our contracts say that we need to give one month’s notice to dismiss an employee. One of our long serving employees has said we need to give them more than this. Are they right?
Your employee could be right. Your contracts may say that you should give a month’s notice, but there are also minimum notice periods set out by law. Your employees are entitled to longer of the month stated in your contracts or one week for each whole year they have worked for you, up to a maximum of 12 weeks. So, for example, if an employee has been with you for six years, they will be entitled to six weeks’ notice.
Also bear in mind that you may need to follow a fair procedure before you give an employee notice to avoid a claim for unfair dismissal.
We think some of our staff are accessing their Facebook accounts during work time. What can I do?
This depends on what policies you have in place. If you haven’t got a policy specifically dealing with this, such as a social media policy or technology user policy, then you are going to need to deal with this as a disciplinary matter. That said, you can only discipline an employee if their social media usage is bad enough to amount to some sort of misconduct. However, if it’s not that bad then your best course of action would be to set the parameters of what is expected at work by sending an email to your employees.
If you’ve got a relevant policy in place, then this is likely to already cover what is expected of your employees. If they’ve strayed outside this then you can look to take action against them for breach of that policy. It’s generally better if you have a good social media or technology user policy in place as this makes things much easier for you when dealing with this sort of issue.
We have an employee who has had two weeks off sick. Our terms and conditions say that we only pay sick pay at full pay for two weeks. Can we just stop paying them after the two weeks?
Our business has changed over time and we now need employees to work flexibly over seven days per week, rather than the 5 days set out in their contracts. Can we change our contracts?
You can’t change a contract by yourself because it needs all the parties to agree to the change. So, you’ll need to try to get your employees to agree to change their contracts and you may need to offer them some sort of incentive to get them to do this.
If you can’t reach an agreement on how to change the contracts and you still need to make the changes, you can terminate your employees’ existing contracts of employment by giving them notice. You can then re-engage them on new contracts which include the more flexible working hours. If you do go down this route, you’ll need to consult with your employees and explain why you need to change their contracts, before you dismiss them. You have to be careful when making changes in this way because any employee who has been with you for two years or more can potentially bring a claim of unfair dismissal against you for terminating their old contract.
What happens if one of our employees makes a complaint about their manager?
Whenever you get a complaint about one employee from another employee, you should always investigate the complaint as part of a grievance procedure. If there isn’t much to the complaint you may be able to deal with the complaint informally.
Although there isn’t any law that says you must hold a grievance procedure meeting, if you don’t do enough when you receive a complaint you leave yourself open to the aggrieved employee resigning and claiming that they have been constructively unfairly dismissed. In addition to exposing yourself to a claim, you may also risk any award from an Employment Tribunal being increased by up to 25% because you have failed to follow a reasonable grievance procedure.
If one of my employees leaves and then comes back, does this break their continuous employment?
It is important to know how long an employee’s continuous employment is because it’s used to work out whether or not they qualify for unfair dismissal rights and also what benefits they’re entitled to such as notice pay and redundancy pay.
In most cases a break in work of a clear week (Sunday to Saturday) where the employee doesn’t work for you will be enough to constitute a break in continuous employment. So, if your employee came back more than a week after they left you, this would most likely break their continuous employment. That said, there are some situations where having a week away from work will not break an employee’s continuous service. These include: where an employee is off work due to illness or injury (although continuity is broken if they remain off work for more than 26 weeks); where the employee is on annual leave or paternity, maternity of parental leave; where there is a working arrangement or custom that covers the situation such as a one week on, one week off shift pattern; where work temporarily stops and where there is a series of short-term contracts with an overarching agreement (an umbrella contract).
Do we have to give our employees paid lunch breaks?
You don’t have to give your employees a paid lunch break. You do have to give your workers a 20 minute rest break if their working day is more than six hours. However, it doesn’t need to be at lunchtime, and you don’t need to pay them for it. Also, although you can’t ask your workers to do any work during their rest break, you can ask them to remain in their work area.