Dismissing an Employee: How and when can you fire someone

Recruit slow, fire fast - someone once told me this was the best HR advice they’d received. It’s a little simplistic but it’s not bad advice.

Your business success depends on you employing the right people, people who do a great job. The reality is recruitment isn’t a science, getting the right people is tough, you don’t really know them until they start.

Did you know, the first two years of employment is the easiest time to dismiss? An employee can’t bring an unfair dismissal claim in an employment tribunal with less than two years service. They can however bring an automatic unfair dismissal claim. Automatic unfair dismissal is when they have been dismissed for a reason that is automatically unfair, for example because of their race or gender.

Recruitment doesn’t guarantee you’ve found the right person for the role, so you may need to use the ability to dismiss in the first two years to protect your business. Use the knowledge you’ve gained about a person during recruitment to plan an induction suitable for them. Set out your expectations. Be clear about what they should be achieving and when. Review their progress and ensure they have the right support and resources (don’t forget there’s a lot to learn when you start a new job). With all this in place you’ll know pretty quickly if things aren’t working out as planned.

Given you’ve already invested in this person, you might find it’s an opportunity to move things around. Perhaps their skills are better suited in a slightly different role. If that’s not an option, dismissing them could be the right thing to do.

Dismissing can be scary, it’s not a nice thing to do. Perhaps you keep hoping it’ll improve. Unfortunately when employers come to me after the two years has passed and tell me it’s always been like that, the solution is much harder to harder to deal with. Keeping someone who isn’t performing or worse disruptive will harm your business and cost you money.

Even with two years service, you’re still able to dismiss. There are five lawful reasons for dismissal:

• Conduct
• Capability
• Redundancy
• Statutory illegality
• Some other substantial reason (SOSR)

Note the word substantial in the last reason. It doesn’t give permission to dismiss anyone for any reason. That said, with the right policies and procedure (key to a fair dismissal) you can dismiss if a person or a role is no longer working for your business.

Do take advice to get the process right, as without this you may find yourself facing a costly employment tribunal.

As a small business you can’t afford to carry people. You don’t have to be heartless but carrying people is being nice to no one!

Article last updated: 5 January 2020