Does anyone know the legal steps to dismiss an employee. This person has been employed for 18 months. Hopefully it won't get to this stage but I need help in case it does. I am a small business empolying 2 people. Thanks for any suggestions or names of anyone who can assist

Hi Cathy,


Dismissing an employee is very difficult and has to be done carefully with consideration and following the rules. I suggest that if possible you ask for legal advice - I know this is difficult for a small business but maybe your accountant could help. I have put here some of my thoughts on the issue but must be verified by a qualified person.


I see your employee has been with you more than 18 months so the following procedure would normally apply.

First: You can dismiss an employee on one of the following grounds:

Conduct - including poor work related conduct with clients as well as you and the other staff

Capability - Insufficient qualification to do the job although this must be carefully managed and you should set down clear guidelines in a draft policy how this should be done (if you are in a sales environment for example its often best to set out performance criteria right at the start and monitor against them and discuss improvement objectives for example)

Legality - for example losing a driving licence if driving was a substantial element in the performance of the job

Redundancy - the work for which the person was employed has dried up

Substantial reasons (other) - which is the catch all for anything not covered by the above but is also a minefield as it has to be grounded in some substantive issue related to the job.

You cannot dismiss and employee of whatever service duration on any grounds of discrimination real or implied



If you do not follow the correct procedure then you can hold yourself liable for unfair dismissal proceedings which in the case of a small business can be disastrous so:

First rule document everything (to be clear: in writing)

1.0 Inform the person you would like to have a meeting to discuss performance issues as things are not going well (say) and set down the process.

2.0 Tell the person the grounds for concern up front (in writing) so they have had time to prepare - no ambushes and tell them they can be accompanied by a friend or union rep (if they bring a relative make sure you are also supported just in case things get heated)
3.0 Hold the review meeting - tell the person they can have someone with them if they wish.
4.0 Explain the reasons for taking action - list out the issues. Allow the person their say - there will be defence obviously.
5.0 Agree a review period and state what must be achieved by that time if you can.
5.0 Document this meeting with the grounds and issues of concern and the agreed outcomes and send this in a letter to the person concerned.
6.0 Hold the agreed follow-up review meeting and go through what has not been achieved - hold meeting even if performance has improved and re-set down a new period of review to show the performance improvement is maintained.
7.0 Document this meeting.
8.0 You must tell the employee they have the right of appeal at any stage - if possible to another senior partner or independent person.


Common mistakes to be avoided.

• You need the document trail just in case you do end up in an unfair dismissal process - copy the documents to your adviser.
• A clear policy covering expected conduct, rules, dismissal procedures and performance requirements are a must no matter how small the company ( I might make one for BizFace members).
• not applying the procedures to employees with less than one year’s service - they can suggest you fired them on unlawful grounds and claim compensation (you may have to settle because the cost of fighting it could be exorbitant for a small business).
• failure to invite employees to disciplinary hearings in writing or supply adequate evidence before the disciplinary hearing - they are entitled to notice of the nature of the grievance in advance
• not inviting employees to be accompanied
• not including a right of appeal
• not appreciating the statutory requirement to proceed with each stage of the procedure without undue delay
• failure to appreciate that an employee may have right to appeal even if it is requested verbally rather than in writing and is after a timescale set down by the employer -
• not hearing grievances raised after termination of employment has occurred for example (be careful of this one if a letter is received even quite some time after the employee has left)

Hope this helps - get some professional help if you think there is any chance of a problem. You may be lucky and at the first meeting the person realises there is a mismatch so will decide to make their exit quietly but you must plan for the full process I am afraid.

RoyMogg

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