First and foremost, dismissing an employee should always be the last resort. An employee is or should be, an asset of a small business. There may be reasons why an employee is not performing or has caused an issue, however, you should try to get to the bottom of this before making any decision to dismiss them.
Understanding what is fair and how to conduct yourself in the right way when dismissing an employee can help to prevent any legal action against you and your business. Here, Lorraine McClure an expert in employment law from Parslows Jersey gives a guide on how to fairly dismiss an employee.
What counts as a fair dismissal?
The valid reasons for dismissing an employee include:
- Their capability or conduct
- Redundancy
- Something happening that prevents them from legally being able to do their job; for example, a driver losing their driving licence.
There could be other fair reasons too, such as working on a temporary contract. However, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.
What counts as an unfair dismissal?
Valid reasons for an unfair dismissal include:
- Not having a good reason for dismissing the employee
- Not following the company’s formal disciplinary or dismissal process.
As an employer, you also need to carefully consider the following scenarios (this list is not exhaustive):
- Refusing to consider flexible working
- Demanding the employee gives up working time rights; for example, taking rest breaks
- Refusing to grant maternity and paternity leave
- Forcing retirement.
If you do not carefully consider the implications of the above requests, you may find yourself at an employment tribunal.
How to avoid unfair dismissal
If it’s clear that you have no choice but to deal with an employee by way of a disciplinary (which could lead to dismissal), you must always follow a fair, reasonable and consistent procedure. The law states that an employee has the right not to be unfairly dismissed. If you are ‘unfair’ in your disciplinary process, it doesn’t matter if you have a good case against the employee; you may still find yourself at the wrong end of a decision in an employment tribunal.
You should always refer to local laws and practices. It’s important to check specifically for where you are based, for example, the UK employment law will differ to the employment law in the US. Don’t assume the law is the same everywhere.
If it is necessary to dismiss an employee, don’t act rashly. You, as an employer, must always act reasonably. If you want to dismiss an employee fairly, you will need to follow the correct procedures and laws. You should always consider whether you are too close to the issue — in these cases, you can instruct a lawyer to assist you objectively. Mistakes to your business can be costly and it’s vital to take care when making the decision to dismiss an employee.
More on staff management and employment law.
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