What’s the legal position on dismissal for misconduct or poor performance?
First of all, you’ll need to ensure that you comply with any terms relating to dismissal in the Employment contract. If your employee has been working for you for at least 2 years, you also need to be aware of the possibility of an unfair dismissal claim being brought against you.
Remember to follow internal procedures on misconduct or poor performance, such as those contained within your business' Disciplinary procedure.
Make sure that your process is in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures, as this applies to dismissals on grounds of misconduct and poor performance.
Give warnings prior to dismissal
In most cases, you will need to give the employee at least 2 formal disciplinary warnings before dismissing them for misconduct or poor performance. You may need to give more warnings depending on your employment contracts or HR procedures. Consider using a Disciplinary outcome letter for misconduct or a Poor performance outcome letter to issue a first or final written warning.
Warnings for misconduct or poor performance should be given only after you’ve held a formal meeting to discuss the issue. Consider using an Invitation letter to a misconduct hearing or an Invitation letter to a poor performance hearing to arrange this formal meeting. For some suggestions on dealing with instances of misconduct or poor performance, read Disciplinary process. In the case of poor performance, carefully consider what support and additional training is reasonable to give the employee in achieving the necessary standard. You will need to do more to help long-standing staff, where standards are being raised generally or where a change to the role is contributing to the issue.
If you decide it’s necessary to summarily dismiss an employee without notice or payment in lieu of notice for gross misconduct, and you have held a disciplinary hearing to consider the matter, you can use a Summary dismissal letter for gross misconduct. Similarly, in truly exceptional cases, where the consequences of repetition of an error are very serious, it may be possible for a single instance of poor performance to amount to gross incompetence.
Make sure you review any previous warnings given to make sure they are legally reliable before using them to justify dismissal on grounds of misconduct or poor performance. To guard against unfair dismissal claims, consider whether your decision is within a range of reasonable outcomes. For example, you don’t need a criminal burden of proof or to decide if a person was lying.
You’ll need to hold a meeting before dismissal, following the same procedure as for warnings. The Invitation should clearly inform the employee that dismissal is a possible outcome.
Ensure that you confirm the dismissal in writing and offer a right of appeal. In cases of misconduct, you can use a Dismissal letter for misconduct to make a formal dismissal, followed up by an Invitation letter to a misconduct appeal hearing if the employee decides to appeal against the decision. In the case of poor performance, you can consider using a Dismissal letter for poor performance for this, followed up by an Invitation letter to a poor performance appeal hearing if required. Where employees have not served long enough to have unfair dismissal rights, consider using this Dismissal letter for employees without unfair dismissal rights. This letter covers a range of grounds for dismissal, including poor performance and misconduct, but should only be used if the employee does not have unfair dismissal rights.
Data protection issues
Remember to follow any data protection policies (eg your Data protection and security policy or data retention policy) and notices you have. You should tell employees the types of data you might collect about them and what you do with it in an Employee privacy notice. For more information, read Data protection and employees.
Ask a lawyer if you have any questions about dismissals for disciplinary reasons.