An employer must ensure they act fairly and reasonably in relation to any decision taken. We have set out below areas to consider before embarking on a dismissal process.
There are currently five fair reasons to dismiss an employee and these are:
By identifying the reason at an early stage this will help to ensure the correct process is followed.
If the real reason for the dismissal is performance related (which would fall into the capability category above) do not try to dress it up as a redundancy. Different procedures apply and ultimately the matter could result in an unfair dismissal claim if the incorrect process is followed.
Before looking to undertake a process with an employee, consider the policies and procedures you have in place; these are often located in a staff handbook. Involve HR/your legal adviser at an early stage so that guidance can be sought. Ensure line managers are trained to deal with the procedures properly. Review the ACAS Code of Practice as this is relevant to certain dismissals and related processes.
It is important to ensure there is clear paper trail of decisions taken and why. Meetings with the employee should be clearly noted and it is useful to have these minutes agreed by the employee. A paper trail is important, should the worse happen and a claim is made by the employee, this is your evidence as to what happened and why.
Engage with and listen to the employee throughout the process as mitigating factors or other potential claims can more easily be identified this way. For instance, if you have conduct or performance concerns with an employee, and as part of the disciplinary/performance process the employee highlights a medical condition, it would be prudent to investigate this further to ensure there are no potential disability discrimination claims.
Offer employees the right to appeal any sanction imposed.
Ideally, the person hearing an appeal should be more senior than the person responsible for making the decision to dismiss or imposing the disciplinary sanction in the first instance.
Hopefully in considering these points it will help you to manage the process fairly and reasonably.
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