Category: Dismissal

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Dismissal Employment Law Employment Rights Act 2025 Lousha Reynolds Notice Periods Probation

The top questions we’re hearing from clients this month

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Although there are a raft of changes as a result of the Employment Rights Act (see ERA Timeline), undoubtedly the change that our clients have the most questions about is the reduction to the qualifying period for unfair dismissal from 2 years to 6 months, which takes effect on 1 January 2027.

The two most frequently asked questions this month relate to this and are as follows:

1.  What impact do notice periods have on qualifying service under the new regime and do we have to include them when calculating qualifying service? 

As long as the employee has a pay in lieu of notice clause within their contract and you exercise that right; i.e. you pay them in lieu of their contractual notice period, the contractual notice period does not get added to their period of service. However, for employees who have been employed for over a month but for less than two years, the law adds one week when determining their period of qualifying service. This means that even if you do exercise the contractual right to pay in lieu of notice, you need to factor in this additional notional week. 

What that means in practice, is that you need to communicate dismissal decisions over a week before the six month qualifying period to avoid the employee being deemed to have 6 months service and a right to bring an unfair dismissal claim due to the notional week of service being added. 

2.  In view of the changes, what is the recommended duration for probationary periods?

We would advise between 3–4 months. For junior roles or where employees are on site full time/closely managed, a 3-month probationary period should be sufficient. You can also build in the ability to extend the probationary period for a further 6 weeks.

That said, we acknowledge that for the majority of our clients, it is difficult to properly assess suitability and performance within a 3-month period, particularly with hybrid working and for more senior roles. 4 months does still provide enough time for a short extension of the probationary period (we recommend 4 weeks) if this is required/or time in case meetings are delayed. However, where probationary periods are extended or meetings are delayed, it is important to remember to factor in the notional week referred to above to ensure that the employee does not have 6 months service at the time of the dismissal.

We recommend reviewing and updating the probationary periods in your existing contracts before issuing them to employees who commence employment on or after 1 July 2026. You should also check that your contracts include an appropriate pay in lieu of notice clause. In addition, it is vital to ensure that managers are fully briefed and trained on any changes to probationary periods and that they understand the importance of conducting the reviews in a timely manner.

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We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

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Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Disciplinary Dismissal Employment Law Performance Management Settlement Agreements Video

Video | Negotiating an exit where performance is the reason

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Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the situation where someone has been offered a settlement agreement where poor performance has been used as the context of the settlement agreement.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Conflict Disciplinary Dismissal Employment Contract Employment Law Grievance HR

Employees bringing employers into disrepute

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A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.

The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included controversial statements alleging the Zionist movement, prior to World War II, collaborated with the Nazis.

The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.

A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.

The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others (human rights). However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.

At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:

  1. The employee had not been informed of the specific allegation which led to his dismissal; and
  2. The possibility of a lesser sanction of a warning wasn’t discussed with him.

The Tribunal found that he should be reinstated.

Whilst the case illustrates the sorts of issues employers are now getting embroiled in around social media and freedom of expression, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decisionmaker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed and the making of comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error here and before writing the disciplinary letter the writer should be thinking ahead to the evidence and what it does/doesn’t prove.

In this case, the employee quite reasonably asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter. The decisionmaker was thinking instead about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust – that was not put to the employee. The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process.

What can you do about this?

If the decisionmaker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should then invite the employee to a further meeting to discuss the fresh allegation that they wish to consider and it may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal. They should then come to their decision.

Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.

The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal! This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not a pre-requisite to consult the employee about that…

The safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and be seen to explain why it wouldn’t.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Collective Redundancy Compensation Dismissal Employment Law Employment Rights Act 1996 HR Notice Periods Redundancy Unfair Dismissal

Things to know when dismissing a member of staff

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The main risks

Anyone sacking a member of their staff faces three main types of potential push back by their ex member of staff. Firstly, the employee may claim they have not received the correct notice pay or other sums owed to them, secondly, they may claim unfair dismissal, once they have 2 years’ service and thirdly, they may claim discrimination.

Unfair dismissal claims are capped at 1 years’ salary or £74,200 compensatory award and a further basic award of up to £13,500 – depending on financial losses of the employee but discrimination awards are uncapped and may include damages for injury to feelings up to £36,000. That said, it is important to note that average awards are much less – between £4-5,000 for unfair dismissal and £12,000 for discrimination.

So how can you protect yourself?

Key advice is: Put yourself in the employee’s shoes and think about how you would want to be treated. If you follow that commonsense rule you shouldn’t go too far wrong eg:- you are likely to investigate the situation thoroughly, listen to all sides including the employee before making a decision and not jump to conclusions. Canny employers draft a provision into the contract of employment enabling them to suspend an employee pending an investigation – this protects the business for example, a disgruntled employee cannot then contact customers or destroy computer evidence relevant to the investigation.

Follow a procedure – for unfair dismissal purposes you have to show that not only did you have a good reason to dismiss (such as the person being incapable of doing their job or guilty of misconduct) but you have to show that you have acted “fairly and reasonably in all the circumstances”. This certainly means following the basic steps outlined above but the ACAS Code of Practice on Discipline and Grievance should be the employers’ touchstone here – Employment Tribunals judge you by this standard and expect you to be familiar with it – it also contains handy flowcharts.

Whilst employees are entitled to bring a companion along to a meeting in which they are dismissed (a colleague or trade union official) you may also want to take a witness along. This person could help you take notes of the meeting but is also there to protect you as they can confirm you acted fairly if challenged.

So where do people tend to go wrong?

The most common mistakes are:

  • Inconsistency of decisions – dismissing for something that the last person who did it just had a warning for – this is unfair. If you want to distinguish between cases you have to be able to justify it on reasonable grounds such as the length of service and previous good record of the employee given the warning compared to the one that was dismissed.
  • Failure to investigate properly – an employer has to have a reasonable belief based on the evidence before them that an employee is guilty of misconduct. Even if an employee denies something outright if you have reasonable grounds to believe they were involved or did do something – you don’t need cast iron proof that they did, unlike criminal law.
  • Dismissing someone for poor attendance record when they have a medical condition such as depression which could qualify as a disability under the disability discrimination legislation. The employee then claims not enough was done to accommodate their medical position.
  • Pre-preparing letters of dismissal and presenting them to the employee at the end of the meeting – this makes your decision look pre-judged and will result in the dismissal being unfair. You must keep an open mind – there could be a reasonable explanation behind the situation as it appears to you.
  • Decision-makers taking account of matters which are not discussed in the disciplinary hearing ie:- the employee doesn’t get a chance to address this evidence and so the dismissal is unfair.
  • Not having an appeal stage making the case automatically unfair or the appeal decision-maker getting involved in the case when the original decision to dismiss is made so that they are not impartial which is unfair.
  • Rushing eg:- walking someone into your room, ambushing them with an allegation, deciding they are in the wrong and dismissing them. Notice of a disciplinary hearing should be given at least 24 hours before the meeting and it often helps to “think” overnight before coming to a conclusion and confirming dismissal, even if you have known all along that is where you are heading – that does mean it could take at least 72 hours  to follow the procedure but it is worth investing the time upfront to protect you against criticism at a later stage.
  • Not giving the employee the opportunity to be accompanied by a companion – failure to do this can result in a Tribunal award of up to £900

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Dismissal Employment Contract Employment Law Employment Rights Act 1996 Employment Tribunal Redundancy Unfair Dismissal

What employers get wrong when dismissing staff

Royal Courts of Justice, London

The most common mistakes employers make when dismissing people (in no particular order) are:-

  • Inconsistency of decisions  – dismissing for something that the last person who did it just had a warning for  this is unfair. If you want to distinguish between cases you have to be able to justify it on reasonable grounds such as the length of service and previous good record of the employee given the warning compared to the one that was sacked.
  • Failure to investigate properly  an employer has to have a reasonable belief based on the evidence before them that an employee is guilty of misconduct. Even if an employee denies something outright if you have reasonable grounds to believe they were involved or did do something  you don’t need cast iron proof that they did, unlike criminal law, but you do need to have conducted a reasonable investigation.
  • Dismissing someone for poor attendance record when they have a medical condition such as depression which could qualify as a disability under the disability discrimination legislation (Equality Act). The employee then claims not enough was done to accommodate their medical position.
  • Pre-preparing letters of dismissal and presenting them to the employee at the end of the meeting  this makes your decision look pre-judged and will result in the dismissal being unfair. You must keep an open mind  there could be a reasonable explanation behind the situation as it appears to you.
  • Decision-makers taking account of matters which are not discussed in the disciplinary hearing ie:- the employee doesn’t get a chance to address this evidence and so the dismissal is unfair.
  • Not having an appeal stage or the appeal decision-maker getting involved in the case when the original decision to dismiss is made so that they are not impartial which is unfair.
  • Rushing eg:- walking someone into your room, ambushing them with an allegation, deciding they are in the wrong and dismissing them. Notice of a disciplinary hearing should be given at least 24 hours before the meeting and it often helps to think overnight before coming to a conclusion and confirming dismissal, even if you have known all along that is where you are heading  that does mean it could take at least 72 hours  to follow this stage of the procedure but it is worth investing the time upfront to protect you against criticism at a later stage.
  • Not giving the employee the opportunity to be accompanied by a companion – failure to do this can result in a Tribunal award of up to 900

Anna Denton-Jones
Refreshing Law