Can you just sack someone?
Firing an employee is a stressful process for both the employer and employee. For the employer, contrary to popular belief, it is not the desired outcome as the Company would prefer to have a performing and committed employee. It is expensive and time consuming to recruit and train a new employee therefore sacking them is a last resort! For the employee, it clearly isn’t their ideal outcome either.
For this reason, many employers tend to sack individuals too late. As a result, they have been allowed to create significant damage to the business, unsettle other employees and have potentially been lulled into a false sense of security of believing that they are un-sackable.
Conversely Companies that have had a bad experience can sometimes sack too quickly as they are nervous that an individual has shown a sign that they could be just like that other guy they had to dismiss!
What does sacking mean?
The legal word for a sacking is a dismissal. A dismissal is when your employer terminates your employment; this can happen for various, fair, reasons. An unfair dismissal, on the other hand, is being sacked without a valid reason. A constructive dismissal is where your employer might have given you no option other than to resign, forcing you to leave work unjustly. Failure to follow the correct dismissal procedure can also be classified as an unfair dismissal.
Reasons that can lead to a dismissal
There are various fair reasons to sack an employee, for example:
- Capability or Performance (ill health or poor performance).
- Conduct / Misconduct
- Breach of a statutory restriction
- Some other substantial reason
Unfair dismissal is when your employer breaches your contract and dismisses you. It can be either automatically unfair or wrongful. An automatically unfair dismissal can be due to:
- Maternity leave
- Membership with a particular trade union
During your probation period (length will be detailed in the employment contract), you can be dismissed for poor work performance, bad conduct or and other reason as long as is not discriminatory. Within the probation period there is no requirement to follow a procedure to dismiss, provide a warning or even provide notice however it is good practice to do so.
Employees who are outside of their probation period are entitled to be given a reasonable amount of time to correct any performance issues and are also given a fair opportunity to explain why their performance is below par and to request reasonable support to improve. For that reason, once the probation period has passed, companies must follow a process for managing poor performance and issue levels of warnings prior dismissing an employee. A Company can move straight to dismissal, following a thorough investigation and subsequent disciplinary hearing, when an employee has been found guilty of an act of gross misconduct.
Under 2 years’ service?
If the employee has less than 2 years service they cannot pursue an unfair dismissal claim at an employment tribunal. They can however raise a claim if it can be suggested that the dismissal was for a reason that is discriminatory, for whistleblowing or for being a member of a trade union. A claim for wrongful dismissal can also be raised.
In summary, you cannot just sack someone. You need to have grounds for dismissal that are fair. It is far safer for a company to dismiss within a probation period as long as it is for genuine performance or conduct concerns. With under two years’ service an employee has less rights to raise a claim however a company must ensure that the dismissal is for fair reasons and it is best advised that a formal process is followed. For all dismissals, companies are best advised to seek professional advice and guidance. In a lot of cases companies have been found guilty of not following appropriate process rather than the reasons for dismissal being unfair.
If you need HR support from a company that understands the needs of your business, contact us today. At Harwood HR we can support your business, help you to grow and promote your employees’ talents. Our UK-based team offers a range of HR support services and advice for SME businesses, including outsourced HR support.