How to Dismiss an Employee (ACAS Compliant)

Dismissing an employee incorrectly can result in an unfair dismissal claim with compensation up to £139,779. Following the ACAS Code of Practice is essential.

The 5 Potentially Fair Reasons for Dismissal

Before dismissing anyone, you must have one of these reasons:

1. Capability or performance - The employee can't do their job to the required standard
2. Conduct - The employee has behaved inappropriately or broken rules
3. Redundancy - The job no longer exists
4. Statutory illegality - Continuing employment would break the law (e.g., lost driving licence for a driver)
5. Some Other Substantial Reason (SOSR) - A catch-all for genuine business reasons

Step 1: Investigation

Before any disciplinary action, you must investigate:

• Gather facts and evidence
• Interview witnesses
• Collect relevant documents
• The investigation should be conducted by someone not involved in the decision

Key principle: The investigation must be reasonable - you don't need to investigate every possible angle, but you must do enough to make an informed decision.

Step 2: Notification

Notify the employee in writing:

• State the allegations clearly
• Include copies of evidence
• Give reasonable time to prepare (typically 48 hours minimum)
• Inform them of the potential consequences
• Confirm their right to be accompanied

Step 3: Disciplinary Hearing

At the hearing:

• Explain the allegations and evidence
• Allow the employee to respond
• Allow them to call witnesses
• The employee has the right to be accompanied by a colleague or trade union representative
• Consider any mitigating circumstances
• Adjourn if you need to investigate further

Do not:

• Prejudge the outcome
• Refuse reasonable requests for postponement
• Prevent them from presenting their case

Step 4: Decision

After the hearing:

• Take time to consider the evidence
• Apply your decision consistently (how have you treated others?)
• Consider length of service and previous record
• Notify the employee in writing of:
  • The decision
  • The reasons for it
  • The right to appeal

Step 5: Appeal

You must offer the right to appeal to a more senior person (ideally someone not involved in the original decision).

• The employee should submit their appeal in writing
• Hold an appeal hearing
• The appeal can overturn, uphold, or reduce the original decision
• Confirm the outcome in writing

The Warning Process

For most conduct and performance issues, you should follow a warning progression:

1. Verbal/informal warning - For minor first offences
2. First written warning - For more serious issues or repeated minor issues
3. Final written warning - A clear signal that further issues will result in dismissal
4. Dismissal - After a final warning, or for gross misconduct

Gross Misconduct

For serious misconduct, you may dismiss without prior warnings. Examples include:

• Theft or fraud
• Violence or threats
• Serious breach of health and safety
• Gross negligence
• Serious breach of confidentiality

Important: Even for gross misconduct, you must still:

• Investigate
• Hold a hearing
• Give the right to respond
• Offer an appeal

You can suspend the employee on full pay during investigation.

Notice Periods

Unless dismissing for gross misconduct:

Length of Service	Minimum Notice
1 month to 2 years	1 week
2 to 12 years	1 week per year
12+ years	12 weeks

Check the employment contract - it may specify longer periods.

Avoiding Unfair Dismissal Claims

Employees with 2+ years service can claim unfair dismissal if:

• You didn't have a fair reason
• You didn't follow a fair procedure
• The decision was unreasonable

The tribunal will ask: Would a reasonable employer have dismissed in these circumstances?

Automatically Unfair Dismissals

Some dismissals are automatically unfair regardless of service length:

• Pregnancy or maternity
• Asserting a statutory right
• Whistleblowing
• Trade union membership/activities
• Health and safety activities
• Discrimination

Documentation Checklist

Throughout the process, keep records of:

• Investigation notes and evidence
• Invitation to hearing letter
• Notes from disciplinary hearing
• Outcome letter
• Appeal hearing notes (if applicable)
• Final outcome letter

Keep these records for at least 6 years.