Have a troublemaker on the team or a slacker serving customers?
How about an employee who sneaks on social media in company time, or a staff member who’s perpetually late?
Unless you’re extremely lucky, you’ve probably had to manage at least one problem employee.
You might also have had to fire an employee.
Firing an employee is difficult – but in many cases, necessary.
There are, however, many situations where you want to fire an employee but you’re not certain if you’re within the bounds of the law.
These edge cases can be extremely costly if you misjudge the situation. The average employment tribunal award for unfair dismissal is over £12,000.
Today on the RotaCloud blog, we take a look at how UK law applies to the various situations in which you might consider firing an employee.
The Two Years’ Service Rule
Many of the situations we’ll explore might count as unfair dismissal.
However, fired employees can’t claim unfair dismissal if they worked at the company for less than two years.
So when we talk about unfair dismissal in this article, it’s only relevant if the employee exceeded two years of service.
With that out of the way, let’s jump in…
Can I Fire an Employee for Being Late?
Before you go ahead and start firing staff for turning up a couple of minutes late for a single shift, bear in mind that you have to follow proper procedure if you don’t want the dismissal to be classed as unfair.
For all misconduct issues, including persistent lateness, this should involve:
- Hold a meeting with the employee to discuss the issue. If you don’t think the employee has good reasons for their lateness, issue a written warning and detail how you expect them to improve and over what time period.
- If there is no improvement, issue a final written warning at your next meeting and warn them that they could be dismissed if they don’t improve.
- At the next meeting, if there is no improvement you need to decide whether or not to fire the employee.
Bear in mind that employees can appeal against disciplinary action, so ensure your decisions are based on evidence (such as timesheets) instead of hunches. These appeals aren’t the same as employment tribunal claims.
Lateness doesn’t usually count as gross or serious misconduct so you shouldn’t skip any of these steps.
Can I Fire an Employee for Lying?
In some circumstances.
If an employee lies on their CV or application form, or during the interview process, it can sometimes be classed as gross misconduct, particularly if the deception puts the safety of other employees at risk, or causes significant damage to the business.
Under these circumstances, you can fire the employee almost instantly – with no need for notice or pay in lieu of notice. However, you should still undertake a thorough investigation into the incident, and hold a disciplinary hearing before definitively firing the employee in question. You can, of course, suspend the employee while investigations take place.
In most cases, however, a lie won’t count as gross misconduct. Instead, it’ll probably count as plain old misconduct so you’ll need to follow the process we outlined in the previous section.
Obviously, you shouldn’t fire an employee for a harmless lie such as lying about who’s turn it was to make the tea! This would definitely count as unfair dismissal.
Can I Fire an Employee for Drinking on the Job?
If this action risks the safety of staff or customers, or if the employee drives or uses machinery while under the influence, it’d probably be classed as gross misconduct.
If an employee comes to work with a hangover on a regular basis, this can count as misconduct if it impacts their work.
However, it is worth noting that alcohol problems should be treated as a health issue at work. That means you need to work with an employee to try to help them with their alcohol issues before you take disciplinary action.
Establish a boundary where alcohol problems become disciplinary rather than health issues. Make this clear in your employee handbook.
Can I Fire an Employee for Poor Performance?
Poor performance can almost always be classed as misconduct. However, it’s important to speak to an employee informally before starting the disciplinary process.
Find out which of these two situations applies:
- The employee has a negative attitude, doesn’t make an effort to perform well, or procrastinates.
- The employee is trying their best to perform, but is still underperforming.
The former situation calls for disciplinary action. You can fire these employees fairly if you follow the procedure for misconduct issues.
The latter instance requires a different approach. You need to refer to company capability procedure. This procedure should help identify reasons for poor performance (lack of training, bullying, unrealistic targets) and strategies for improvement. If this process doesn’t make any difference, you can then start to consider disciplinary action.
Can I Fire an Employee for Their Political Affiliation?
It technically doesn’t count as an unfair dismissal if you fire someone for being a member of a political group or having certain political beliefs.
However, an employment tribunal might find this unfair depending on the circumstances. Usually, political views aren’t grounds for dismissal unless they impact an employee’s ability to do their job.
Importantly, if an employee has been dismissed for political reasons, the two-year rule we mentioned above doesn’t apply – they can claim for unfair dismissal even if they’ve only worked at the company for a few days.
Can I Fire an Employee for Whistleblowing?
As long as the employee in question reported issues which actually count as whistleblowing (here’s a list), you can’t dismiss them fairly.
Again, whistleblowing dismissals are an exception to the two years’ service rule.
Can I Fire an Employee for Being Ill?
Employees who often take time off sick are undoubtedly a drain on your team, but if you plan to dismiss an employee for this reason, you need to be careful not to unfairly dismiss them.
Firstly, have an informal chat about their frequent absences. Explain how their absence impacts the business, and that you need to be able to rely on their regular attendance.
If nothing changes, have a formal meeting with the employee. This could be a return-to-work meeting, or a separate meeting. Bring attendance figures with you – including any metrics, such as the Bradford Factor, that you mention in employment contracts or employee handbooks.
Where necessary, continue with written warnings and then dismissal.
However, if the employee’s continued absences are due to a disability, you must take a different approach or you will fall foul of anti-discrimination law.
Under the Equality Act 2010, employers are required to make reasonable adjustments at work for disabled employees. This might include adjusting their duties or making changes to the physical office environment.
We highly advise seeking legal help if you’re unsure whether an employee’s long-term illness counts as a disability.
Can I Fire an Employee for Looking for Another Job?
In some circumstances.
Assuming the employee has worked at your company for two years, they could claim unfair dismissal if they’re fired simply for looking for another job.
However, if they’ve been carrying out their job search while at work, you can follow your normal disciplinary procedures based on social media and personal internet use while at work, which may lead to their eventual dismissal.
Can I Fire an Employee for No Reason?
Yes, if they’ve been working for you for less than two years.
Be aware that there are some exceptions to the two-year rule – for example, it only applies to unfair dismissals, and not other types of dismissals.
Can I Fire an Employee for Being Arrested?
Yes, with a few caveats.
Consider the nature of the offence they have been charged with, and whether or not there’s any overlap with their job. For example, if a staff member in your accounts department is charged with fraud, it’d be wise to immediately suspend them.
If the employee is remanded in custody (and is due to be for some time), you can dismiss them because they’re unable to do their job.
Remember to follow proper procedure, gather evidence and document everything to protect your business from unfair dismissal claims.
Can I Fire an Employee for Insubordination?
Yes, in some circumstances.
In most instances, insubordination will count as misconduct rather than gross misconduct. Follow your usual discplinary procedures, taking into account the severity of the incident(s), whether they’re reflective of the employee’s usual attitude, and the impact of the incident(s).
If the instances of insubordination threatened the safety of staff or customers, or significantly damaged the business, they may be classed as gross misconduct.
Can I Fire an Employee for Badmouthing the Company on Social Media?
Employees who bring the company into disrepute over their personal social media channels can be fairly dismissed – this might even be grounds for instant dismissal in some circumstances.
We recommend drawing up a social media policy so that employees know the consequences of badmouthing the company on social media. A policy will significantly help your case should you face an employment tribunal.
We tried to avoid saying ‘it depends’ too frequently in this article, but employment law is complex and ever-changing – ‘yes/no’ answers are few and far between.
This article isn’t legal advice and shouldn’t be used as a replacement for it, but it’s a useful starting point for employers and managers who want to show troublesome staff the door – without paying the price for it later!
Want more articles like this? See some myths and misconceptions about employee rights debunked.