Do I Have To Give A Reason When Dismissing An Employee?

Written by Leah Waller
Senior Employment Consultant Solicitor

A not so uncommon call that we receive starts with something along the lines of… “I have been sacked…for no reason / I don’t even know why!”

So, does a reason have to be given when dismissing an employee, or phrased another way (depending what point of view, you are reading this from), are you entitled to be given a reason for your dismissal?

 

As with many answers when you go to a solicitor, the short answer…it depends!

 

If the Employee has 2 years’ service or more…

Where an employee has been continuously employed with you for at least two years they will have the right not to be unfairly dismissed (meaning that if they are dismissed unfairly, they can bring a claim against the employer for unfair dismissal).

This doesn’t mean that you cannot dismiss someone once they have been continuously employed for at least two years (now that would be ludicrous!) but it does mean that you MUST have a fair reason for dismissing them and you must act reasonably, taking into account all the circumstances, in treating that reason as the reason for dismissal (carrying out a fair procedure and investigation).

There are five potentially fair reasons for dismissal and these are:

• Conduct;
• Capability (including ill health and poor performance);
• Redundancy;
• Breach of a Statutory Requirement;
• Some Other Substantial Reason

Where an employee has been continuously employed with you for at least two years they will also have the right to request a written statement that provides the reasons for their dismissal. This written statement must be given to the employee, by the employer, within 14 days of the request being received from the employee.

If you fail to give a written statement of the reasons for dismissal, or if the reasons that are stated within your written statement are inadequate or untrue, then then employee is entitled to bring an additional claim, and if successful the Tribunal can award of two weeks’ pay (section 93 of the Employment Rights Act 1996).

However, just a little reminder for those employers that may be dismissing an employee that is PREGNANT or on STATUTORY MATERNITY LEAVE, STATUTORY PATERNITY LEAVE or ADOPTION LEAVE…these employees are entitled to a written statement providing their reason for dismissal, whether or not they have two years’ of continuous service with you.

 

If the Employee does NOT have at least 2 years’ service…

So, where an employee has NOT been continuously employed with you for at least two years (and they are not pregnant, on maternity leave, on paternity leave or on adoption leave), you are not legally obliged to provide a reason for dismissing them.

However, in practice it makes good sense to do so, not least because it is good practice and can save time and costs moving forward but also because, from the employee’s perspective, it is a fair and reasonable action to take.

There are some limited claims that an employee can bring without having been continuously employed for at least two years and so giving a written reason for dismissal to all employees will evidence that it was NOT due to an unlawful reason and could therefore limit the risk of the employee bringing such a claim against you.

 

We act for BOTH Employers and Employees and so, if there is anything you require assistance with, our Employment Department at Greystone Solicitors offer a FREE initial consultation and are more than happy to help.

 

Call us on 01582 343453 or email on Info@GreystoneSolicitors.co.uk