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

  • Double jeopardy of digital asset inheritance planning amid probate delays
    Hidden digital assets and mounting interest on inheritance tax bills are creating a costly double risk for families dealing with estates following the death of a loved one, as probate delays continue to impact thousands across England and Wales, addi


    Read more
  • Deal or no deal? Keeping negotiations on track
    How to keep commercial deals on track with Heads of Terms, NDAs and exclusivity, improving efficiency, reducing risk and avoiding delays.


    Read more
  • Rights and wrongs: How AI is reshaping Employment Tribunal claims
    AI may be a familiar presence in the workplace, but it’s now starting to appear somewhere less expected: the Employment Tribunal (ET). Grayson Stuckey explores this trend – and what it means for employers.


    Read more
  • Renters’ Rights Act: why process and paperwork matter more than ever for landlords
    The Renters’ Rights Act has now passed into law, marking one of the most significant shifts in the private rented sector in a generation. Most of the new measures will take effect in May 2026, with a national landlord database to follow later in th


    Read more
  • Understanding the Roles of Executors and Trustees
    When making a will, you place significant trust in those appointed to carry out your wishes. Executors and trustees are key roles, often held by the same people, but their responsibilities differ. Understanding these roles and their obligations helps


    Read more

What they say...

  • W Sandover, April 2026
    Boundary Wall dispute “Although (for complex, not relevant) reasons, this matter never reached the point of either negotiations or a court case, Barker Gillette staff provided us with excellent support. I would certainly go back to them in the

  • Client, April 2026
    Excellent suppy “Karen Cole supported me through a difficult time with warmth and professionalism. She made the entire process as smooth as possible, responding quickly to communication and giving clear advice. I would highly recommend Karen to

  • Client, April 2026
    So helpful! “Pippa Marshall listened and offered supportive, practical advice. She was very friendly, easy to talk to and did not pressure me to make any costly decisions during my free 30-minute consultation. I would definitely recommend Pippa

  • Nika Franke-Matthecka, April 2026
    “We had an excellent experience working with Michael Davies and his team on the sale of our property. They were efficient, knowledgeable, and highly diligent throughout the entire process. Communication was always prompt and clear, which made w

  • Paul Woodman, March 2026
    Will writing “Excellent service from start to finish. Efficient and good value. Charlotte was very professional, knowledgeable and understanding.”

Read more
Send this to a friend