Reasons for dismissal of an employee

It is common for employers to think that there are numerous reasons for dismissal of an employee but, within legislation, there are only five potentially fair reasons, which are conduct, capability, redundancy, illegality, and some other substantial reason. This blog will provide an overview of the different reasons and explain why it is important for employers to know which reason applies.

Reasons for dismissal of an employee – conduct

This reason is perhaps the most obvious as most people would accept that if an employee engages in misconduct sanctions are likely to follow. There are numerous examples of misconduct such as not following reasonable management instructions, not following the procedures of the organisation or behaving inappropriately.

It is often the case that misconduct can be addressed with action short of dismissal, such as a warning. However, there will be misconduct that is deemed to be sufficiently serious (or when misconduct has continued despite a warning or warnings being given previously) to make dismissal an appropriate course of action.

Conduct can be differentiated from other reasons for dismissal (such as capability) on the basis that conduct issues would essentially involve wrongdoing on the part of the employee whereas the other reasons do not. To use the examples above, the employee who did not follow procedure knew what should have been done, but chose not to do it. Similarly, the failure to follow instructions was not an understandable objection to an unreasonable instruction (such as when health and safety considerations are involved) but was simply because the employee decided not to do what was required.

Reasons for dismissal of an employee – capability

Capability applies if the employee is essentially unable to do their job. This situation could arise, for example, because the employee lacks the skills or aptitude to effectively perform the role, or the person’s health is such that it is not possible to perform the required duties.

As the examples above indicate, capability is not concerned with blameworthy acts, as conduct is. It is not the employee’s fault that illness prevents them from being at work, just as the employee who is falling short of the mark may simply be unable to achieve it despite trying hard.

Reason for dismissal of an employee – redundancy

It is common to think of redundancy in terms of a need to reduce the number of employees, as a result of a reduction in demand for the goods or services that the organisation offers. However, redundancy also applies to situations involving restructuring: where there has been an increase in demand, or growth, in one area of the business, but a decline in another. In such circumstances, while there may not be an overall reduction in head count, the organisation clearly needs to adapt to ensure that the right number of people are in place, with the right skills, to ensure the organisation functions effectively.

Reason for dismissal of an employee – illegality

An obvious example of such a situation would be where a person who is employed as a driver loses their licence. In such circumstances, it would obviously be illegal to drive without a licence meaning that the employee is therefore unable to perform the role required.

Reason for dismissal of an employee – some other substantial reason (SOSR)

This last reason captures situations that do not fit with the other reasons referred to above. There are numerous examples of what employers may regard as some other substantial reason. A potential example may be when an employer needs an employee to work from a different location, but the employee does not wish to do it.

The importance of adopting a fair process in relation to dismissal

Provided an employee has a sufficient length of service it is possible for that person to bring an unfair dismissal claim. In addition to unfair dismissal an employee may bring other claims which do not have a length of service requirement, such as discrimination.

It is therefore important that employers adopt a process which shows the dismissal was fair in the circumstances, but what does that mean? Well, for a start, the action that will be appropriate will depend on the circumstances and the reason given for dismissal.

Each of the situations referred to above are likely to prompt a number of questions. For example, if the issue is conduct, how should the matter be investigated to find out what happened? Who should do it? How thorough does it need to be? What happens after the investigation?

In relation to capability, what needs to be done to show an employee is not meeting the standard expected of them? If there should be support for the employee in question what form should it take, and how extensive does it need to be in order for an employer to be regarded as having acted fairly? If an employee is on sickness absence how should the situation be managed?

Whether a dismissal is found to be fair or not will obviously depend on the circumstances and will ultimately be a matter for the Employment Tribunal to decide.

Whatever the situation, it is important not to regard dismissal as a single act, but instead to see the situation as a process with the dismissal being the last stage.

Plotkin and Chandler works exclusively in the areas of HR and employment law and support both employers and employees.

If you are an employer, we offer HR consultancy whereby we advise on issues or undertake tasks on behalf of your organisation, such as attending meetings or drafting documentation. We also provide HR training where we answer the questions above as well as many others. We offer HR training on an extensive range of topics such as managing sickness absence, how to undertake disciplinary investigations etc. If you anticipate that a situation may escalate into an Employment Tribunal claim, or you need assistance with defending an Employment Tribunal claim, we can help.

If you are an employee who is going through a disciplinary process, you have been told that your performance needs to improve, or you are on long term sickness absence and want to know what action you should take, we can help. If you have been dismissed, and feel that the decision was unfair, we can advise you on next steps.

To discuss your requirements, and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com