Many employers will admit that the toughest part of their job is dealing with members of staff, who for one reason or another, are not performing in their role. Unfortunately, there will be occasions when ultimately the dismissal process is called for and, whilst emotions may run high on all sides, the employer must ensure that due process is always followed to avoid further stresses for those involved, not to mention a costly tribunal.

There are two principles that should remain forefront in the employer’s mind when conducting dismissal proceedings: fair reason and fair process. These should underpin every step of the process from the initial investigation and meetings to the final dismissal. The employer should perform fair investigations and procedures in accordance with the employment contract; reaching reasonable conclusions and ensuring that the employee has full understanding of the processes and their performance issues - with the right to fully respond and appeal.

It is therefore essential that the key element in conducting a fair and legally compliant dismissal procedure - the employment contract - is well drafted, clear, comprehensive and unambiguous. The employment contract determines the rules of employment but also (together with statutory rights) the due process that should be undertaken for disciplinary and dismissal procedures. When dismissing a member of staff you are terminating a contract, but that contract cannot be breached. Any breaches by the employer resulting in the employee’s resignation may be deemed as Constructive Dismissal; breaches during the dismissal process itself may result in Wrongful Dismissal.

Although tribunals ruling on unfair dismissal will utilise precedents from previous cases there are some reasons which will automatically be deemed unfair and so should not be cause to dismiss staff. These include (but are not limited to): membership of a trade union, working in accordance with statutory rights (maternity, work hours etc) and seeking to defer retirement. Additionally, it is worth noting that summary dismissals should only be enforced in exceptional circumstances (e.g., in the event of serious misconduct with plentiful witnesses) as they are likely to be seen as unfair by a tribunal due to lack of process.

Redundancy is too broad a topic to cover here but again there are a few fundamental principles that should be remembered. The process contractually agreed between the employer and employee must be adhered to (e.g., notice period, pay etc). Remember, it is the role that will be made redundant, not the individual. Employees cannot be made redundant based on any discriminatory factors and should be offered the chance to fulfil another vacant role within the organisation if their skill-set sufficiently matches it.

Whether you are an employee, self employed or an employer, the devil can be in the detail and it is essential that you get the right advice when drafting contracts or resolving any workplace grievances. Specialists in employment law such as Employment Solicitors Surrey can help all parties concerned, representing clients throughout the tribunal process whilst specialising in alternative dispute resolution.