Can I sack someone on the spot?
No. never ever dismiss someone on the spot. This is where employers get in a mess.
Even where an allegation appears serious, employers are expected to follow a fair and reasonable process before any dismissal decision is made.
This normally involves:
- carrying out a reasonable investigation
- informing the employee of the allegations
- inviting them to a disciplinary hearing
- allowing them the opportunity to respond
- reviewing the evidence before making a decision
Even in cases of gross misconduct, the usual approach is to suspend the employee while the investigation takes place, rather than dismissing immediately.
Employment tribunals focus heavily on whether the employer followed a fair and reasonable process, as highlighted in guidance from the Chartered Institute of Personnel and Development and the ACAS Code of Practice.
What are the fair reasons for dismissal?
Under UK employment law, there are five potentially fair reasons for dismissal:
- misconduct
- capability or performance
- redundancy
- statutory restriction (for example losing the legal right to work)
- some other substantial reason (SOSR)
However, having a fair reason alone is not enough. Employers must also follow a fair process before dismissing an employee.
What counts as gross misconduct?
Gross misconduct refers to behaviour serious enough to potentially justify dismissal.
Examples can include:
- theft or fraud
- violence or threats of violence
- serious breaches of health and safety
- serious insubordination
- serious breaches of company policy
Even in cases of gross misconduct, employers should still investigate the situation properly before deciding to dismiss.
Do I have to give a warning before dismissal?
In many cases, yes.
Where the issue relates to performance or minor misconduct, employers would normally follow a staged disciplinary process such as:
- verbal or informal warning
- first written warning
- final written warning
- dismissal
However, this depends on the circumstances and the seriousness of the issue.
Can I dismiss someone during their probation period?
Yes, employees can be dismissed during probation.
However, employers should still act reasonably and fairly, which usually means:
- discussing concerns with the employee
- giving them an opportunity to improve
- documenting the reasons for the decision
Even during probation, dismissals should not be discriminatory or automatically unfair.
What is unfair dismissal?
Unfair dismissal occurs when an employee is dismissed:
- without a fair reason, or
- without a fair process
Most employees must have two years’ continuous service (this will change in 2027) to bring an ordinary unfair dismissal claim, although there are exceptions for automatically unfair reasons.
Examples of automatically unfair dismissal include situations involving:
- discrimination
- whistleblowing
- pregnancy or maternity rights
- trade union activities
What do employment tribunals look at in dismissal cases?
When a dismissal is challenged, tribunals typically focus on two key questions:
- Was there a fair reason for dismissal?
- Did the employer follow a fair process?
They will assess whether the employer:
- carried out a reasonable investigation
- allowed the employee to respond
- considered evidence from both sides
- made a proportionate decision
Fairness and reasonableness are central principles in UK employment law.
Do small businesses have to follow the same dismissal rules?
Yes.
Employment law applies to all employers, regardless of business size.
While tribunals may take into account the resources available to a small business, they still expect employers to follow fair procedures when dismissing employees.
Can an employee refuse to attend a disciplinary hearing?
Employees may refuse to attend, but employers should still make reasonable efforts to give them the opportunity.
If an employee repeatedly refuses without good reason, the employer may proceed with the process based on the available evidence.
It is important that the employee has been properly informed and given the opportunity to attend.
When should a business seek HR advice before dismissal?
It is always sensible to seek HR advice when:
- dealing with disciplinary issues
- managing performance concerns
- handling grievances
- considering dismissal
- managing complex employee situations
Taking advice early helps ensure the correct process is followed and significantly reduces the risk of disputes escalating.
Why following the correct process matters
Many dismissal cases are not lost because the employer lacked a reason.
They are lost because the process was rushed or handled incorrectly.
Following a fair and structured process helps businesses:
- make better decisions
- treat employees consistently
- reduce legal risk
- protect the organisation if disputes arise
This is why good HR support focuses on getting the process right from the beginning. This is what I do.
