How to effect a fair dismissal and the 5 ‘fair reasons’ | Video series

Our Employment & HR Services team has recorded a series of videos offering guidance to organisations on how to make sure any dismissal of an employee is done in a fair way. To be considered a fair dismissal, the first step is to ensure that one of the five potentially “fair reasons” applies. Our team will guide you through each of these, highlighting some of the most frequently asked questions from clients and the most common missteps we see in practice. The team will also guide you through the next step, which is to ensure that a fair process is followed. The team have examined each of these reasons, so the series includes their top tips on:

• Redundancy
• Conduct – investigations and disciplinary hearings
• Breach of a statutory duty or restriction
• Capability – poor performance and ill-health
• Some other substantial reason (SOSR)
• Procedural issues

Redundancy

In the first video of our video series on how to effect a fair dismissal, Rhiannon Dale explores the potentially fair reason for dismissal of redundancy. Rhiannon discusses the meaning of the word “redundancy” and employer’s obligations in redundancy situations. She explores when collective consultation is necessary, the consultation process, pools and selection criteria and ways in which redundancy may be avoided, to help employers navigate this tricky area and shares her top tips for managing the process.

Conduct – Part 1: Investigations

In the first session on how to effect a fair dismissal on the grounds of conduct, bringing her “real world” experience in conducting disciplinary and grievance investigations on behalf of employers, Elinor Corbett-Jones discusses the key considerations an employer should bear in mind when conducting an investigation process. A fair investigation process is key to effecting a fair dismissal on the grounds of conduct. She considers how an employer should carry out a fair investigation, with regard to the principles of fairness set out in the Acas Code and established by case law. She also considers the role of the investigator and what happens if an employee refuses to co-operate with an investigation together with some practical tips on managing the process.

Conduct – Part 2: Disciplinary hearings

Christine Bradbury looks at the key issues to consider when carrying out a disciplinary hearing. She covers preliminary issues such as who should attend the hearing; the role of the employee’s companion and what should happen if the employee fails to attend or seeks a postponement. She also provides guidance on how the hearing itself should be conducted; what options are available to the employer and what information should be provided to the employee.

Breach of a statutory duty or restriction

Harry discusses one of the potentially fair reasons for dismissal, specifically, a breach of a statutory duty or restriction. He explores where this reason for dismissal may occur in practice and how those types of situations typically arise, and how employers can deal with such a situation.

Capability – Part 1: Poor performance

The first of a 2-parter on fair capability dismissal, Eleanor Bamber looks at the key issues that arise when an employee’s performance falls below the required standard and an employer wishes to dismiss fairly for poor performance (capability). She provides guidance on the process that may be followed when dealing with an underperforming employee, including the importance of allowing a reasonable opportunity to improve and conducting adequate poor performance hearings. She also covers some of the more common issues that can arise when undertaking this type of capability process, including where employees lapse after demonstrating some improvement and where capability may not in fact be the principal reason for dismissal.

Capability – Part 2: Ill-health

The second part of our 2-part video on capability, sees Sali Owens look at the second option for a fair capability dismissal – ill health. Sali explores how employers can dismiss fairly for ill-health, including guidance on what it means to consult with the employee and how to manage the different stages of a capability procedure. She also covers the extent of the employer’s duty to ascertain the medical position and the importance of considering suitable alternative employment as well as other alternatives to dismissal.

Some other substantial reason (SOSR)

Louise Price discusses what is meant by ‘Some other substantial reason’ (SOSR) and when an employee can seek to rely upon this as a ground for dismissal. She also discusses how an employer can fairly dismiss an employee on the ground of SOSR and what the position is if there is an overlap with any of the other potentially fair reasons for dismissal. This is one of the areas people most commonly seek legal advice upon – as it is not straightforward.

Fair process

Kate Walsh discusses the importance of following a fair dismissal process. She explores issues which are common to all types of dismissals and some of the more subtle nuances which are unique to each potentially fair reason for dismissal.