A Legal Guide for Employers on Conducting a Fair Dismissal

Dismissing an employee is rarely straightforward, and when not done properly, it can lead to legal disputes that can be both costly and damaging. At RDC Solicitors, we understand the pressures facing employers, including the importance of balancing business needs with the rights of employees and ensuring compliance with UK employment law. This article aims to help employers navigate the dismissal process both fairly and legally, minimising the risk of claims such as unfair dismissal, wrongful dismissal, or discrimination.

Understanding Fair Dismissal

In the UK, dismissal is considered fair if it is for one of the five potentially fair reasons set out in the Employment Rights Act 1996:

• Conduct – inappropriate or unacceptable behaviour.
• Capability or Qualifications – lack of ability or qualifications to do the job.
• Redundancy – when the job no longer exists or is no longer needed.
• Statutory Illegality – where continued employment would contravene a legal duty (e.g. loss of driving licence for a delivery driver).
• Some Other Substantial Reason (SOSR) – a broad category that includes business reorganisations or breakdown of working relationships.

Even when a dismissal is for one of these reasons, it must also be handled procedurally fairly.

The Importance of Procedural Fairness

Many employers fall foul of employment law not because the reason for dismissal was wrong, but because the correct procedures were not followed. Fair process is critical.

The process typically involves the following steps:

1. Proper Investigation

Before making any decision, conduct a thorough and impartial investigation. This applies particularly to misconduct or performance-related issues. Gather evidence, speak to witnesses, and ensure the employee has an opportunity to explain their side.

2. Informing the Employee

Once an issue is identified, inform the employee in writing, clearly outlining the allegations or concerns, any evidence gathered, the potential consequences if the issue is proven, and details of a disciplinary or capability hearing. This is a vital step for giving the employee a fair opportunity to prepare.

3. Disciplinary or Capability Hearing

Conduct a formal hearing where the employee can respond to the allegations or concerns. They have the right to be accompanied by a colleague or trade union representative. Take notes, remain objective, and allow them to present evidence or mitigating factors.

4. Decision and Outcome

After the hearing, make a considered decision based on the evidence presented. If dismissal is deemed appropriate, issue this in writing, setting out the reasons for dismissal, the date the employment will end, their notice period and any pay in lieu of notice and the right of appeal.

Right of Appeal

Employees should be given the opportunity to appeal the decision. A different person, ideally someone who is more senior, should hear the appeal, and the process should be prompt and transparent.

Specific Considerations for Different Types of Dismissal

Misconduct

For gross misconduct (e.g. theft, violence, gross insubordination), immediate dismissal may be justified, but it must still follow an investigation and hearing. For less serious conduct, consider a series of warnings before dismissing.

Capability/Performance

Follow a performance improvement plan, provide support or training, and give the employee time to improve. Only if performance doesn’t improve after reasonable support should dismissal be considered.

Redundancy

A fair redundancy process includes:

• Identifying the roles at risk
• Consulting with affected employees
• Using fair and objective selection criteria
• Exploring alternatives to redundancy

Redundancy also carries additional legal obligations such as redundancy pay, notice periods, and in some cases, collective consultation.

Avoiding Common Legal Pitfalls

At RDC Solicitors, we regularly advise businesses dealing with dismissal-related claims. Some of the most common pitfalls to avoid are as follows:

1. Failing to Follow Internal Policies

Always follow your company’s disciplinary, grievance, and dismissal procedures as laid out in the employee handbook or contracts. Failure to do so can render an otherwise fair dismissal legally unfair.

2. Lack of Documentation

Keep clear, written records of every stage including any investigations, hearings, decisions, and correspondence. Documentation can make or break your defence if the case goes to tribunal.

3. Discrimination Risks

Ensure that no dismissal is connected to a protected characteristic under the Equality Act 2010, such as age, gender, disability, race, religion, or maternity. This applies both to the reason for dismissal and to how the process is handled.

4. Dismissals During Probation

Even during probation, employees may have the right to bring claims for unfair dismissal (after two years of service) or discrimination (with no minimum service required). Don’t assume probation allows for shortcuts.

5. Not Taking Legal Advice Early

Too often, we see businesses call us after the dismissal has already taken place. By seeking legal advice early in the process, you may be able to avoid a tribunal altogether.

What if a Claim is Made?

If an employee brings a claim for unfair dismissal, it will likely go through Acas Early Conciliation first. Many disputes are resolved at this stage, and legal advice can help you negotiate a fair settlement or prepare a strong defence.

Tribunals consider whether there was a fair reason for dismissal, whether a fair process was followed, and whether the decision to dismiss fell within the band of reasonable responses

It’s important to realise that compensation awards can be substantial, particularly if the dismissal is found to be discriminatory or retaliatory (e.g. for whistleblowing).

Best Practices for Employers

• Keep policies up to date – Review your employment contracts and staff handbook regularly.
• Train managers – Ensure anyone involved in disciplinary matters understands legal and procedural requirements.
• Communicate clearly – Be transparent and consistent in communications with employees.
• Act proportionately – Always consider alternative outcomes such as warnings or demotions before dismissing.
• Stay objective – Make decisions based on facts and evidence, not emotions or assumptions.

How RDC Solicitors Can Help

Our Employment Law team at RDC Solicitors works closely with businesses of all sizes to provide pragmatic, commercially sensible advice. Whether you're planning a redundancy programme, navigating complex misconduct allegations, or defending an employment tribunal claim, we’re here to help.

If you're facing a potential dismissal scenario or simply want to ensure your policies and procedures are up to date, contact us on Bingley 01274 723858, Ilkley 01943 601173 or Bradford 01274 735511.