Skip to main content

Insight article

December 7, 2020

Employers: How to lawfully dismiss an employee

If you are considering the possibility of terminating a member of staff's employment, it is important to ensure that there are internal procedures in place which are fair and reasonable and that those procedures are followed. A careful approach reduces your exposure to claims before an Employment Tribunal.

Employment claims are complex, and there is little prospect of recovering the legal costs incurred in defending them. Awards to employees can often be substantial, so it’s therefore worth taking the time to get things right.

You must act fairly and reasonably while ensuring compliance with any relevant terms of the employment contract and likewise ensure that you do not discriminate unlawfully when you dismiss an employee.

What are the fair reasons for dismissal?

  1. Conduct
  2. Capability
  3. Illegality
  4. Redundancy
  5. Some other substantial reason (SOSR)

SOSRs are a “catch-all ” category that captures any reasons that don’t fall within the other categories. For instance, they can cover scenarios with a personality clash or irretrievable breakdown in the working relationship.

Automatically unfair reasons for dismissal

  • Pregnancy & maternity
  • Family reasons
  • Representation
  • Trade union grounds
  • Part-time and fixed-term employees
  • Pay and working hours
  • Pension scheme trustee
  • Whistleblowing

Lawfully dismissing an employee with two or more years of service

The first hurdle is to ensure a fair reason for dismissal (as above). It’s vital you:

  • adopt a fair procedure;
  • act reasonably in treating the reason as a sufficient reason for dismissal;
  • act in accordance with the employment contract;
  • do not discriminate, and
  • provide reasons for the dismissal in writing.

Guidance on the procedure for dismissal is set out in the ACAS Code of Practice.

dismiss an employee

Employees with less than two years of service

Generally, employees must have been employed for two years, known as the ‘qualifying period’, before they can bring a claim for unfair dismissal. As such, and with the correct legal advice, it can be relatively straightforward to lawfully dismiss an employee with less than two years’ service – if the reason for dismissal is not automatically unfair and/or discriminatory. Importantly, there is no qualifying period for either of these claims. You must take great care, as successful claims will be deemed unfair regardless of the employee’s length of service.

Discrimination and the protected characteristics under the Equality Act

  • Age
  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

There is no need to demonstrate that an employer acted unreasonably in any of these claims.

Time limits

Strict time limits preclude specific claims from being brought, with extensions being granted to employees when they begin the ACAS early conciliation process.

We can advise you of the relevant time limits depending on the stage of the potential claim. Regardless of its merits, the employee’s claim may be out of time. On occasion, an employee can obtain an extension of time by applying to the Employment Tribunal.

Contractual claims, also known as “wrongful dismissal claims”

Employees who are unable to claim unfair dismissal can still claim breach of contract (regardless of the length of the employment relationship) if you, as the employer, breach a term of the employment contract. For such claims, fairness is not an issue, and the remedy is limited to putting an employee in a position they would have been in if the employer had not breached the employment contract.

In any dismissal, it is crucial that you give notice or notice pay to the employee—unless it is a summary dismissal and all accrued but untaken holiday is accounted for as of the date of dismissal.

You should seek legal advice as early as possible to protect your business from potential claims and stay on the right side of the law.

Some practical steps to avoid potential pitfalls

  • Good and consistent record-keeping;
  • regular employee appraisals;
  • have a compliant grievance procedure in place;
  • keep an up-to-date staff handbook which is accessible to staff;
  • investigate claims fairly to avoid victimisation claims, and
  • depending on what stage of the procedure you are at and the business’s exposure to risk, it may be both practical and commercial to come to a mutual settlement agreement to protect the business from future claims.

Whether you are looking to protect your business from claims, need assistance with a new or existing claim, or require a review of your current policies and procedures, speak to employment lawyer Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

Stay in touch

Subscribe to our newsletter

Stay in touch

By completing your details and submitting this form you confirm you are happy for us to send you marketing communications and that you agree to our Website Privacy Policy and Legal Notice and to us using Mailchimp to process your data.


Sending

News/Insight

  • Buying a commercial unit: what you need to know
    Buying a commercial unit can be a valuable step for your business, but it comes with legal, tax, planning and property risks. Brinda Granthrai explains what buyers should consider before committing.


    Read more
  • Pension and inheritance tax changes from April 2027: why now is the time to review your will and estate plan
    From 6 April 2027, most unused pension funds and pension death benefits are expected to be included in a person’s estate for inheritance tax purposes. This article explains what the changes could mean for families, pension nominations, wills, chari


    Read more
  • What happens when company owners disagree? The key to keeping private companies running smoothly
    Director and shareholder disagreements can quickly disrupt a business if they are not addressed early. This article explains what disputes can mean for a private company, how they can be avoided, and how legal advice can help protect stability and su


    Read more
  • SMEs urged to review risks as liability rules expand
    New criminal liability rules taking effect on 29 June 2026 will make it easier to prosecute businesses of any size where senior managers commit offences while acting on the organisation’s behalf.


    Read more
  • AI-written grievances add new pressure for employers
    AI is making it easier for employees to produce detailed, formal-looking grievances that refer to legal concepts and workplace rights. For employers, the key is to look beyond the language, identify the core concern and follow a fair, consistent grie


    Read more

What they say...

  • Dino, July 2026
    A lucky professional meeting! “We had an excellent professional experience to recommend to all those who need legal help in the UK.”

  • Client, July 2026
    10-star service from Patrice Lawrence “I cannot encompass in words how brilliant a service and support I have received since working with Patrice. Effective efficiency, exceptional excellence. All this and more. I am grateful that Patrice manag

  • Dino, July 2026
    Unexpected and very valid professional experience “Law firm to be recommended also to non-residents in the UK”

  • Client, July 2026
    Seamless experience “My recent experience with RIAA Barker Gillette was exceptional. They provided considered care, attention to detail, and I felt supported every step of the journey. This was my first time working with a solicitor, and I was

  • Client, July 2026
    Highly professional “Very professional & friendly throughout the whole process. Clear & concise in all communications. Highly recommended.”

Read more
Send this to a friend