Deciding to dismiss an employee is a huge step for any business owner. It can be incredibly unpleasant, and often rather risky. But there are some sensible steps you can take to ensure the process is as painless as possible, and to protect yourself against unfair dismissal claims by employees.
Top of the list is timing.
This is because claims for unfair dismissal by employees must be lodged with an Employment Tribunal within 3 months of the effective date of termination of an employee’s contract.
The effective date of termination (EDT) is important as it establishes the end of the period of continuous employment. The Courts have determined that EDT is effective from the date that the employee is actually made aware of the dismissal.
Why does the EDT matter? Because the dismissed employee has 3-months from the EDT to lodge an application to the Employment Tribunal for unfair dismissal.
So, as an employer it is vital that you can demonstrate that your employee was made aware of their dismissal on a specified date. That they saw it. Not that you simply sent it.
Aidan Squire, employment law specialist at TM Law says:
“Many businesses are still unware of the importance of certainty when it comes to the timing of staff dismissal, and take an ‘it’s good enough’ DIY approach. It’s vital that employers ensure that the termination of an employee’s contract is properly notified, because any error in notification or timing could result in a costly and lengthy unfair dismissal claim”.
Look at these recent examples of Employment Tribunal cases –
- An employee retrieved a letter from her son’s homework bag which had been inadvertently collected up by him with his homework papers. The date she opened the letter was determined by the Supreme Court to be the effective date of dismissal. This meant that the 3-month period started from this date and she was still within the deadline for submitting an application to the employment tribunal.
- An employee was on holiday when her letter of dismissal arrived in the post. Of course, she didn’t open it until she returned. This brought her service with her employer to an end after her 50th birthday, thereby entitling her to enhanced increased pension entitlements
Dismiss an employee: Best practice approach
Employers considering dismissal of an employee should perhaps consider effective dismissal at the end of the notice period, before 2 years elapses. This ensures you safeguard yourself against the statutory entitlements regarding unfair dismissal.
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