There are four main potentially fair reasons for terminating employment:
- some other substantial reason.
An employee may also be fairly dismissed where to continue their employment would place the employer in breach of a legal requirement (for instance, if their entitlement to work in the UK had expired).
The protection from unfair dismissal applies to employees with two or more years of continuous service.
In all cases it is necessary to follow a fair procedure before reaching the decision to terminate employment.
Conduct and capability
In cases of conduct, a fair procedure will involve following a disciplinary procedure. In capability cases, where the issue is poor performance, this will similarly involve following a fair procedure. Where the capability issue relates to ill health, it will normally be necessary to have an up-to-date medical report providing information about the employee’s state of health and their likely prognosis (note that this can only be obtained with the employee’s express written consent). Where the employee has a disability, it is necessary to consider reasonable adjustments before making any decision to terminate employment. Dismissal of an employee with a disability without making adjustments that could reasonably have been put in place to enable them to have returned to work will be discriminatory as well as unfair dismissal.
In cases of redundancy, it is necessary to carry out consultation with any employees who are at risk of redundancy before making any decision about the redundancy of their post. Consultation should be carried out with a view to avoiding redundancy or mitigating its effects wherever possible. Suitable alternative employment should always be sought for an employee who will otherwise be made redundant. If a selection for redundancy needs to be made between employees then the selection criteria should be discussed with employees beforehand as part of the consultation, must be non-discriminatory and should be applied as objectively as possible. For further information about conducting a fair redundancy process see the ACAS Code of Practice.
It should be noted that if the reason for redundancy is that the work undertaken or the funding for it is moving to another organisation, there is a likelihood that the employee’s employment may transfer to that organisation under the Transfer of Undertakings (Protection of Employment) Regulations 2006 rather than being made redundant. Legal advice should always be sought in these circumstances.
Some other substantial reason (“SOSR”)
SOSR only applies in exceptional cases, where it is impossible for the contract of employment to continue in circumstances not covered by the other reasons. Examples of SOSR might be where an employee was sent to prison, or where working relationships had irretrievably broken down despite every effort being made to repair them (for example, through formal mediation and other support mechanisms).