Dismissal – Sacking
A dismissal is a sacking when you terminate an employees contract because of their conduct or capability. Whether the sacking is on conduct or capability grounds, you must follow the correct dismissal procedure, otherwise the dismissal will be considered either an unfair or wrongful dismissal. If you are unsure of your position regarding a sacking on conduct or capability grounds, it would be wise to suspend the employee while you seek legal advice, rather than sacking them immediately. In serious cases, suspend the employee rather than dismissing them, that way, if the allegations are false, there is much less risk of (and basis for) the employee claiming against you.
Sackings on conduct grounds
Minor misconduct
A minor misconduct is not normally adequate grounds for dismissal. But if the behaviour is repeated even after warnings, then it becomes a gross misconduct issue. Examples of minor misconduct are:
- Being late
- Using a company vehicle for unauthorised personal uses
- Using company phones for personal calls
- Using company internet facilities for personal browsing/email use
- Not performing to adequate/satisfactory standards
Gross misconduct
Gross misconduct is where an employee breaks the rules and the consequences for the business are damaging. Examples of gross misconduct are:
- Abusive behaviour or violence
- Theft or fraud
- Alcohol or drug abuse
- Discrimination or harassment
- Deliberately damaging company equipment/property
- Seriously breaking health and safety regulations
- Serious negligence
- Serious insubordination
- Misuse of an organisations property or name
- Serious breach of confidence
Loss of licence
The loss of a relevant licence is, in most cases, grounds for dismissing a worker. If an employee drives a lorry every day, but loses their driving licence, they are no longer able to carry out their job. The employer therefore usually has reasonable grounds to sack the employee. There can be grounds for the employee to expect the employer to reassign the employee to another function while any ban is being served. A short speeding ban may only last for two weeks, and it would therefore be reasonable for the employer to find other work for the duration of the ban. Be careful of dismissing an employee that could fulfil other functions while banned, as your actions could lead to an unfair dismissal claim.
Alcohol and drugs
In cases of alcohol and substance misuse, it has been found that employers who refer employees for rehabilitation or specialist treatment are likely to help their employee manage their problem and return to work. This can actually work out cheaper than hiring and training a new employee in some cases, as well as helping a valuable member of staff recover from a serious problem.
Lack of training
Minor negligence caused by a lack of knowledge or experience should be addressed with training or guidance in the correct area. By law, the employee must be given reasonable opportunity to be taught the skills and given the knowledge needed to carry out the job. Losing a customer because a form was not filled in correctly by a new employee who was given no relevant training is not misconduct of any level.
Sackings on capability grounds
Sometimes an employee is incapable of doing their job to the required standard. This might be because they don’t have the right skills or aptitude for the job. In many c ases, you can help the employee improve by taking informal action, such as offering further training or mentoring, or by offering them another suitable job. If after taking informal action, their poor performance continues to affect your business you are in a position to consider dismissal through the Correct Dismissal Procedure.
Ill health
Sometimes an employee is incapable of doing their job to the required standard. This might be because they are ill and therefore unable to attend work regularly or do their job properly while at work. In many cases, you can help the employee improve by taking informal action, such as offering further training or mentoring, or by offering them another suitable job. If after taking informal action, their poor performance continues to affect your business you are in a position to consider dismissal through the Correct Dismissal Procedure. You must first establish whether or not the employee’s ill health qualifies then as disabled under the Disability Discrimination Act 1995. An employee is disabled for the purposes of the Act if their illness has a substantial, long-term and adverse effect on their ability to undertake normal day-to-day activities.
A person is also disabled once they have been diagnosed with cancer, HIV and multiple sclerosis. People with mental illnesses are also disabled under the Act. If the employee is disabled, you have a duty under the Act to make reasonable adjustments to premises and working practices. If you fail to make reasonable adjustments for a disabled employee, they could take a claim of disability discrimination to an employment tribunal.
Research & advice
With all matters of such sensitivity, we suggest you carry out further research before making decisions; in difficult cases, contact an employment consultant or solicitor.
More information
- Dismissal - Dismissal, Sacking and Redundancy
- Dismissal – The Correct Dismissal Procedure
- Dismissal - Sacking
- Dismissal – Dismissal & Sacking Notice Period
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