Dismissal

When dismissing someone, the employer must comply with the relevant employee's employment contract and the employee's policies and procedures, particularly its Disciplinary procedure.

If any rights set out in these documents are below minimum  statutory (ie legal) requirements (eg requirements for disciplinary processes or for giving notice), the statutory minimum requirements should be followed instead.

Remember to follow any Data protection policies and notices you have. You should tell employees the types of data you might collect about them and what you do with it in an Employee privacy notice - a statement describing how you collect, use, retain and disclose personal information. For further information, read Data protection and employees.

Advance notice of termination is generally required to dismiss someone. The notice period that an employee is entitled to be given is usually specified in their contract of employment. The minimum notice given generally cannot be less than one week for each year of service once an employee has worked for their employer for at least 2 years. The minimum notice period required is of one week and the maximum that's required by law is 12 weeks. These are known as the statutory minimum notice periods - longer notice periods may be written into an employee’s employment contract. These should be followed if they exist. If they do not, the statutory minimum periods should be used. For more information, read Notice periods.

Employees must be allowed to work throughout their notice period as normal unless their employment contract says otherwise (eg if there is a payment in lieu of notice (PILON) clause or a garden leave clause).

The employer should not do or say anything that might destroy or seriously damage their relationship of trust and confidence with an employee, without justification. Otherwise, the employee may resign and consider themselves constructively dismissed and claim wrongful dismissal or unfair dismissal.

Unfair dismissal is the main legal issue to be aware of when dismissing employees (although employers should also be careful not to unlawfully discriminate).

'Protected' employees can only be dismissed for a fair reason and after a fair process.

Employees are protected from unfair dismissal after two years' service with their employer. There are certain exceptions, ie situations in which employees may be protected by unfair dismissal law and able to make legal claims without having 2 years’ service. These are situations in which certain types of dismissal occur which are automatically considered to be unfair. These include dismissals for reasons such as the employee's:

• being pregnant or taking maternity leave

• trades union membership

• whistleblowing

• reporting health and safety risks

• asserting their statutory rights.

For more information, read Unfair dismissal.

What counts as a fair process when dismissing somebody depends on the reason for dismissal. However, it will normally involve hearing what the employee has to say and thinking about alternatives to dismissal. Issuing one or more prior warnings might also be needed to allow the employee an opportunity to improve.

To make sure dismissal is legally effective and risk-averse, an employer should use clear words and a reliable means of delivery to communicate their decision to dismiss someone, regardless of the reason for dismissal. Written notice is best but not essential unless the contract says so. These are a few types of dismissal letter you can consider using, including:

• a Dismissal letter for misconduct

• a Dismissal letter for poor performance

• a Summary dismissal letter for gross misconduct

• a Dismissal letter for employees without unfair dismissal rights

It is not legally required to confirm the reason for an employee's dismissal in writing unless the employee asks or is pregnant/on maternity leave at the time.

If an employee starts a case against their employer regarding their dismissal in an Employment Tribunal, and the Employment Tribunal decides that the employer unfairly dismissed the employee, the employee can generally claim compensation against the employer or return to work for the employer. The maximum compensation available for unfair dismissal changes every year. For more information, read the Government’s guidance on Dismissal.

If a dispute exists between an employer and an employee, they may attempt to negotiate the terms of the employee’s departure from the employer’s employment. Reaching an agreement can save both parties from the costly and time-consuming process of taking a case through an Employment Tribunal. Such agreements can be formed in a legally binding way using a Settlement agreement. 

This is a dismissal where an employer has breached the terms of an employment contract. The most common example is where the employer hasn’t given sufficient notice to the employee. For more information, read Wrongful dismissal and Summary dismissal and gross misconduct.

This is a dismissal that happens when an employer commits a certain type of serious breach of the employment contract between them and an employee, resulting in the employee's resignation. In the event of such a breach, the employee can treat themselves as having been dismissed.They may then be able to take a constructive dismissal claim to the courts to seek compensation.

Examples of breaches of contract that could entitle an employee to claim constructive dismissal include:

• a reduction in pay without the employee’s agreement

• being discriminated against

• not being paid at all

• being subject to disciplinary proceedings that are wholly unreasonable

At the heart of constructive dismissal is a breach of the duty of trust and confidence between an employer and an employee. This duty obligates employees and employers not to act in ways that could undermine the employment relationship. You can reduce the likelihood of undermining this relationship and of consequent Employment Tribunal claims by, for example, making sure employee grievances are resolved appropriately.

For more information, read Constructive dismissal.

Comply with data protection laws during the dismissal process

Remember to follow any Data protection policies and notices you have when dismissing an employee. An employer must tell its employees about the types of data they might collect about them and what they will do with it by, for example, using an Employee privacy notice or a fair processing statement (ie a statement describing how the employer collects, uses, retains, and discloses personal information). For more further information, read Data protection and employees.