If employees are not performing at work, then you may have to consider dismissing them. This can be very costly if you get it wrong and there's always the risk of finding yourself in an employment tribunal.
Nursery owners often contact me to ask if they can dismiss someone who has only been with them a few weeks or months, and the simple answer is yes. But you must be careful to follow the correct disciplinary procedure. Some people think that because the employee has worked for them less than 12 months they do not have to worry, and that they can just tell the employee not to come back to work. This is not true.
While it is correct that someone with less than 12 months' service cannot claim unfair dismissal, they can make a claim for discrimination, even if they have only been employed for one day. Unfortunately, unlike an unfair dismissal claim, there is no cap on what a payment for discrimination could be.
There is a myth that if someone has acted in a way which is considered gross misconduct, they can be instantly dismissed. But there is no such thing as instant dismissal. If an employee commits an act of gross misconduct they can be summarily dismissed without notice or pay in lieu of notice. But you must still follow a fair disciplinary procedure, which should include carrying out an investigation, holding a hearing and give the employee the right of appeal, as you would with any disciplinary issue.
When there is a possibility that you may dismiss an employee, always follow these rules, no matter what their length of service is:
- - Investigate. Discover the facts; interview any witnesses before considering whether any action needs to be taken.
- - Write to the employee and invite them to a hearing, stating the allegations against them and informing them there is a possibility they may be dismissed.
- - Advise the employee that they have a statutory right to be accompanied by a fellow worker or trade union representative.
- - During the hearing, make sure comprehensive notes are taken, as they will be required if you need to attend an employment tribunal.
- - Allow the employee to have their say and ask them if there are any mitigating circumstances to be taken into account.
- - After hearing all the evidence, adjourn the meeting to consider what actions are necessary.
- - Reconvene the meeting to give your decision and explain the outcome to the employee.
- - Confirm your decision in writing.
- - Inform the employee of their right to appeal against the dismissal.
My advice is to always treat all employees fairly, make sure your disciplinary policy is up to date and consider introducing a capability policy.
