How to dismiss an employee fairly

One of the most challenging things I ever had to deal with as an employer was dismissing one of my employees.

I had known her previously as a customer, but I still went through the normal recruitment process. This included advertising the vacancy, getting application forms completed, interviewing the candidates and obtaining references for my selected new recruit.

The offer of employment included a three-month probationary period to allow for an on-the-job assessment to be made. When she started, I gave her my standard induction training and continued to provide her with guidance on how I wanted each of her tasks to be undertaken.

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While she fitted in well with the rest of my team and I found her a pleasant person who related well with my customers, she sadly could not perform the store replenishment and other tasks in the manner required. I found it more than frustrating, and even with further training things did not improve.

Two weeks before her probation period was due to end, I decided the new recruit was not going to be of long-term value to my team. I arranged an interview to explain that she had not been able to reach the necessary standards and I would not be able to keep her on.

Letting an employee go who was within their probation period should have been a simple process. However, when I talked through the way she worked and her inability to attain the level of performance required, she revealed she had been involved in a car accident some years before and received significant head injuries.

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I had not been aware of this and at that point I knew I needed to take legal advice.

I called the NFRN Legal Helpline, a free service to members, and spoke with a solicitor who gave me guidance on how to proceed. They also provided a set of documents and letters to assist me in resolving this difficult employment issue.

The solution arrived at was to give her a further six weeks probation, at the end of which she appreciated that she was unable to effectively perform the role as both of us had hoped.

She left most amicably and went on to set herself up as a jobbing gardener, a role that she embraced with great enthusiasm.

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I was reminded of this incident recently when I heard about a store owner who dismissed a failing employee shortly before the second anniversary of their starting. Employees do not gain the right to claim unfair dismissal until they have been employed by a business for two years.

This particular employee was failing on a number of areas, with significantly more sick days than other employees, while also not following store policy on informing either the manager or supervisor.

The store owner has an employment and staff policy that he had professionally prepared, and he provides all employees with contracts, terms of employment, job description and specification, and conducts regular performance reviews for all his staff.

He also keeps full records for all his employees, which includes notes on interviews and phone conversations, and where possible ensures a witness is present.

When he held the dismissal interview, he was able to show the thick file of evidence he had put together during the employee’s time with the store.

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As with so much when managing a business, effectively having a due diligence process for all aspects of store operation is vital. The retailer can certainly show this.

Although the full protection of the Employment Act regarding employee rights do not apply until the second anniversary of their employment, there are instances where other legislation comes into play, the Equal Rights Act being one such example.

Employees who have worked less than two years do still have some rights, including one week’s notice.

How to dismiss an employee fairly

By law, there are five potential reasons for dismissing someone fairly. The ACAS website states that these are:

• Conduct – when the employee has done something that’s inappropriate or not acceptable
• Capability – when the employee is not able to do the job or does not have the right qualifications
• Redundancy – when the job is no longer needed
• A legal reason – when the employee cannot do their job legally, for example a delivery driver who is banned from driving
• ‘Some other substantial reason’ – a term used for a wide variety of other situations

The two cases illustrated where action was taken before the second anniversary of appointment were fair as they were covered by conduct and capability. They both illustrate the need to have:

• A store staff policy
• A thorough recruitment process including taking up references
• Contract of employment, terms and conditions, and provide a job specification for all employees
• A programme of regular performance reviews for all employees
• An employment file to include notes on performance, sickness and all formal interviews for all staff members

Employment law is complex: if you have an employment issue take legal advice before acting.

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