5 Fair reasons for dismissing an employee
While most employees leave you organisation through resignation and retirement, you may find yourself in a position where you need to dismiss an employee from your organisation. If you dismiss an employee, you need to ensure a fair process is followed. There are five potentially fair reasons for dismissing staff:
- Capability on the grounds of absence or performance;
- Statutory Restriction (Where continuing to employ someone would contravene the law e.g, Someone whose role includes driving being dismissed because they lost their driving licence).
- Some Other Substantial Reason (SOSR) – This needs to be used carefully and is designed to be applicable when none of the other four fair reasons for dismissal apply. This would usually result in a “without prejudice” discussion with the employee and a settlement agreement. Always speak to your HR Advisor or an employment lawyer in this instance as there are certain legalities and paperwork you will need assistance with. We do have an Employment Lawyer that we have access to at the Diocese, however you will be expected to pay their costs directly if you use their services.
In some cases, an employee can resign and claim constructive dismissal. This is normally because the employer has breached the express or implied terms of the employment contract. The employee must resign without notice for them to claim constructive dismissal. This is why following all your own policies and procedures is important so that you do not breach the employment contract. If you find that you have this issue, please talk it through with the HR Advisor, Simone Smith.
Redundancy and TUPE Transfers
If you need to make redundancies, or need help TUPE transferring an employee, either to or from your organisation, you can speak to the HR Advisor for advice.
If an employee resigns you must ensure that they put this in writing and give the appropriate notice as per their employment contract . If you do not want them to work their notice, then you have the right to them to tell them this. You can either pay them “Pay in Lieu of Notice (PILON) through their final wages or put them on garden leave for the duration of notice. The benefit of Pay in Lieu of notice is that the employee receives this in their final pay, and their leave date is the date that you have agreed with them to leave (this will likely be the day that they resigned or close to it). If you put an employee on garden leave, then their leave date is the end of the notice period, and they will be paid their normal salary through this period. During this period, they are still considered an employee and therefore must continue to abide by the usual employment policies and procedures.
In the case of all leavers, it is important that you follow a process of exiting them from the organisation well. You should ensure a thorough handover of any work, IT/Other equipment. You should also conduct an exit interview with the employee. It is always best that the exit interview is done by someone other than the employee’s line manager so that the employee can feel confident in approaching any difficult issues that they wish to talk about. When an employee leaves for any reason, you should:
- Ensure that their final pay is correct.
- Pay any accrued but untaken annual leave or deduct it if they have overtaken on their leave. (You should ensure that there is something in your employment contracts that tells employees that this will happen if they leave).
- Pay any Pay in Lieu of Notice (if the employee is dismissed with notice, or an employee has resigned, and you do not need them to work their notice, but have not placed them on garden leave).
- Pay any redundancy pay and notice if applicable.
If you receive reference requests for previous employees, you do not have to complete them except in the following circumstances
- You have written in their contract of employment that you will provide one if they leave
- By agreement, usually as part of a settlement agreement
- Certain financial services jobs regulated by the Financial Conduct Authority (FCA) or Prudential Regulation Authority (PRA)
If you do provide a reference, it should be a fair and accurate representation of the employee. You can click this link which will direct you to ACAS’s advice on providing employee references.
Template Letters, Policies and Documents you can download, adapt and use:
Below are template letters you can use for most leavers, however if you find yourself in a position of Restructuring or dealing with a TUPE transfer, please speak to the HR Advisor Simone Smith who will guide you through these processes and provide all the template documents and letters you will need to do this in a lawful way.
Due to the complexities of restructuring and making redundancies, you are advised to speak to the HR Advisor for advice and guidance on how to manage this process. She will also provide you with all relevant templates and forms that you need:
- Letters - Please speak to the HR Advisor for advice and she will send you the correct templates to use:
- At Risk Letters (including electing representatives)
- Consultation invitation letters including 2nd and 3rd meetings as required by law
- Selection Matrix templates
- Redundancy pay calculator
- Outcome letters
- Appeals letters
TUPE Transfers (In and Out)
Due to the complexities TUPE transfers, you are advised to speak to the HR Advisor for advice and guidance on how to manage this process. She will also provide you with all relevant templates and forms that you need.
Read this document to understand what a TUPE transfer is, so you can decide if this applies to your organisation – What is a TUPE Transfer?
Resignation, Retirement and End of Fixed Term Contracts
- Exit Interview template
- Leaver checklist for processing the employee as a leaver
Disclaimer: These templates are provided to help you and are based on good practice detailed by the Cipd and ACAS which are the professional bodies in relation to Employment Law matters. We use these at the DBF however we accept no liability for your use or amendment of these templates.