Dismissal – Part Two

This factsheet gives introductory guidance on Dismissal on the grounds of Capability and Dismissals on the grounds of Conduct.

RML members should seek advice as early as possible when considering dismissing an employee.

In next month’s Newsletter we will be looking at Dismissals relating to Industrial Action and Whistle Blowing.

Dismissals on capability grounds

Sometimes an employee is incapable of doing their job to the required standard. This may be because either:

•  they don't have the right skills or aptitude for the job

• they are ill and therefore unable to attend work regularly and/or do their job properly while at work

Capability dismissals - lack of skills/aptitude

Sometimes an employee’s capability can be improved by taking informal action. For example by offering (further) training/mentoring or another suitable job may be offered.

If, after taking informal action, an employee doesn’t improve and their poor performance continues to affect your business, you might then need to consider formal disciplinary action.

However, to ensure that any resulting dismissal is fair, you should follow your Company’s written Procedure which should include:

• Hold a disciplinary meeting.

Present the reasons and the nature of the caution and offer an allotted time and support for the employee to improve. Warn that failure to improve will result in a first written warning. Keep a note of the meeting and copy it to the employee.

• If there's no improvement during the allotted time, hold a second meeting, reiterate the complaints and give the employee a chance to explain. If there's no satisfactory explanation, issue a first written warning, detailing the complaint and the actions and timescales in which they can resolve the problem. Keep notes of the meeting and copies of the warning.

•  If there's no improvement during the allotted time, hold a further meeting, reiterate the complaints and give the employee a chance to explain. If you are not satisfied with the employee’s responses issue a final written warning, again recording what happened at the meeting and setting targets and reasonable time for improvement. Warn that if there's no improvement, dismissal will be considered.

•  If the employee still fails to improve and you are contemplating dismissal, you must follow your Company’s written formal disciplinary/dismissal procedure.

•  Following the hearing - or appeal if there is one - you will need to decide whether to give the employee a further chance to improve, or whether dismissal is now appropriate in the circumstances. You must inform the employee of your final decision whatever the outcome.

•  Throughout the disciplinary process, employees have the right to be accompanied to all disciplinary meetings and to appeal to a manager - ideally one not involved in the initial disciplinary decision.

Capability dismissals - illness

For cases where your employee suffers from long-term ill health, or frequent related bouts of short-term sickness which interfere with their job performance, it's best to treat the absence as a capability issue, rather than as misconduct.

These issues need to be dealt with sensitively and you should:

• monitor their absence record

• consult/ contact them regularly to find out about their health and/or the  likelihood of return to work

• set time limits on assessing the situation and tell the employee

• let them know if their job is at risk, and why

• obtain medical reports - you'll need the employee's written permission

• consider adjustments to their job to allow them to return to work and/or do their job more easily

To avoid an unfair dismissal claim, only dismiss as a last resort. Make sure you have followed fair and proper procedures. Keep in mind the following:

• Check if the illness amounts to a disability - if so, you may need to make reasonable adjustments so the employee can carry out their job.

• Discount any periods of absence related to a pregnancy-related illness when taking action over someone's absence record.

• An eligible employee may be entitled to statutory sick pay for up to 28 weeks - as well as any contractual sick pay.

Absence related to drugs and alcohol

Treat employees addicted to drugs or alcohol similarly to employees with any other serious illness. However, if an employee won't accept they have a problem or seek help, the issue may become one of unacceptable conduct.

Where the issue is purely one of conduct, ie the employee is not addicted to alcohol or drugs but their drug/alcohol consumption is leading to regular absence/lateness, the employee should become subject to the disciplinary procedure.

Dismissals on conduct grounds

You may consider dismissing an employee on conduct grounds if they:

• can do their job but are unwilling or reluctant to do it properly

• commit some form of misconduct, ie something that breaches the Company's disciplinary rules

Conduct dismissals - performance

In some cases improvement may be made if you take informal action, by having a 'quiet word', you can make them aware that you have noticed their poor performance. Always keep a written record of informal action on the employee’s personal file.

If, after taking informal action, they don't improve and their poor performance continues to affect your business, you might then consider formal disciplinary action.  However, to ensure that any resulting dismissal is fair, you should follow the following procedure:

• Hold a disciplinary meeting.

Present the reasons and the nature of the caution and offer an allotted time and support for the employee to improve. Warn that failure to improve will result in a first written warning. Keep a note of the meeting and copy it to the employee.

•  If there's no improvement during the allotted time, hold a second meeting, reiterate the complaints and give the employee a chance to explain. If there's no satisfactory explanation, issue a first written warning, detailing the complaint and the actions and timescales in which they can resolve the problem. Keep notes of the meeting and copies of the warning.

•  If there's no improvement during the allotted time, hold a further meeting, reiterate the complaints and give the employee a chance to explain. If you are not satisfied with the employee’s responses issue a final written warning, again recording what happened at the meeting and setting targets and reasonable time for improvement. Warn that if there's no improvement, dismissal will be considered.

•  If the employee still fails to improve and you are contemplating dismissal, you must follow your Company’s written formal disciplinary/dismissal procedure.

• Following the hearing - or appeal if there is one - you will need to decide whether to give the employee a further chance to improve, or whether dismissal is now appropriate in the circumstances. You must inform the employee of your final decision whatever the outcome.

•  Throughout the disciplinary process, employees have the right to be accompanied to all disciplinary meetings and to appeal to a manager - ideally one not involved in the initial disciplinary decision.

Conduct dismissals - misconduct

If an employee is involved in an incident of misconduct, the action you take depends on how serious it was. You should consider:

• If the misconduct was a one-off and the employee has a good disciplinary record, a verbal warning may be enough.

• If the misconduct was one of a series of incidents, you may have to give a final written warning or start the statutory dismissal/disciplinary procedure.

• If it's gross misconduct, eg fighting or stealing, you could dismiss immediately. However, it's best practice to suspend them on full pay, investigate the incident further and then decide whether or not to begin the disciplinary/dismissal procedure.

Employee absence as a conduct issue

If an employee is often absent or late for unexplained/unconvincing reasons, this is a conduct issue and you should consider disciplinary action.

Investigations before taking disciplinary action

Before taking disciplinary action, you should consider:

• Asking  absent employees to phone in at a given time each day

• ensure line managers follow up any unexplained absence

• conduct return-to-work interviews

Where employees are finding it difficult to manage home and work responsibilities, consider introducing flexible working arrangements. Note that employees with parental responsibility for a child aged 16 and under - or a disabled child who is under 18 and receives disability living allowance - along with carers of certain adults have a right to request flexible working. You must consider such requests seriously - see RML’s guide on flexible working.

Taking disciplinary action

The employee should - except in the most serious of cases - be given an opportunity to improve. Usually warnings, both oral and written, are sufficient.

If the situation does not improve, you may have to consider dismissal, but only as a last resort and after proper and fair procedures have been followed.