10 things to consider when writing a dismissal letter
Dismissing an employee is not a decision that most employers take lightly. Here, we look at some key considerations when drafting a dismissal letter.
Dismissing an employee is not a decision that most employers take lightly. It is usually the result of a long process which has involved a good deal of consideration.
Unfortunately it is not unusual for an employer to undertake a thorough and fair process to dismiss an employee but find itself unable to evidence that fair process to an Employment Tribunal. A good rule of thumb in all employment and HR processes is "if it's not written down, it didn't happen".
Arguably the most important document in this context is the letter of dismissal itself. If this letter does not contain the right information it may well harm your ability to defend an unfair dismissal and/or discrimination claim. A particularly badly drafted dismissal letter could even serve as an encouragement to an employee to bring a claim. A dismissal letter should not be seen as merely the outcome of a particular process; it is your opportunity to demonstrate how fair you have been and how thorough the process was.
No matter how many dismissal letters you have drafted, it is certainly useful to re-focus on the basics from time to time to make sure all bases are covered.
1. The reason
It is surprising how many dismissal letters don't! Make sure you detail the reason for the dismissal carefully and refer to all the factual circumstances. Do not assume that the reason is obvious; if it was misconduct, say so clearly and set out what the allegations were and the findings in relation to each one.
2. Is the reason fair?
The reason for dismissal must be one of the five potentially fair reasons set out in the Employment Rights Act 1996 - conduct; capability; redundancy; statutory illegality; or 'some other substantial reason'. Seek advice if you are not sure which applies.
3. What factors formed the basis of the decision and what factors were disregarded?
It is very easy to think that the basis of your decision is clear and does not need to be 'spelled out'. However, unfair dismissal claims often stand and fall on whether the correct factors were considered when making the decision to dismiss. For example, was a previous (live) warning taken into account or disregarded? Were any mitigating factors put forward by the employee at the disciplinary hearing and were these considered? Was the decision made on the basis of certain allegations but not others?
4. Refer to the process
This is your chance to show how fair the process has been. This might include setting out details of the investigation that was carried out and how each allegation was discussed at the disciplinary hearing. For redundancies, it might involve describing the consultation process that has taken place and the efforts you have made to avoid redundancies (including, for example, your search for suitable alternative vacancies).
You may not want a dismissal letter for gross misconduct to have the same tone as a letter dismissing someone because of redundancy or because of ill health. A 'no-fault' reason for dismissal may necessitate a softer tone and use of the wrong tone could cause the recipient to feel aggrieved and may increase the chances of them seeking some form of redress. Even where the dismissal is for gross misconduct, the letter should always be drafted in a professional and courteous manner.
It is important when reaching a decision to consider the possible alternatives to dismissal. The letter should ideally set out these alternatives and why dismissal is the option that was thought to be most appropriate. Even in cases of gross misconduct where the decision is usually summary dismissal (dismissal without notice) it is advisable to show that consideration was given to whether, in the circumstances, dismissal with notice or some other sanction would have been appropriate.
7. The right of appeal
It is very important to state in the letter that the employee can appeal the decision. The employee should be given the name and contact details of the relevant individual to contact. The letter should include a reasonable timeframe for submitting the appeal and the employee should also be informed of the appeals procedure by, for example, appending the disciplinary policy to the letter if they have not received it earlier in the process.
8. Consider the practicalities
It is always worth including practical information such as when the employee's last day will be. In cases other than summary dismissal you may want to detail whether they will need to work their notice (or whether they will be paid in lieu), whether they have outstanding accrued holiday which they will be paid for, when they can expect their P45 and arrangements for the return of any company property.
9. Confidentiality and restrictive covenants
This letter may be a good opportunity to remind employees about their duty of confidentiality and the fact that it extends beyond the end of the employment relationship. The employee may also have restrictive covenants in their contract and this letter could remind them of these obligations in a letter they are likely to read carefully.
10. Send the letter ASAP
You could draft the perfect dismissal letter but if it sits on someone’s desk for weeks and weeks before being sent out, it could have a negative impact on the fairness of the whole process. Once the decision to dismiss has been made, it is important to send the letter as soon as possible and certainly within any timeframe stipulated in the relevant policy. Too much delay will breach the ACAS code of practice.
Do you have a difficult disciplinary decision to make or a tricky dismissal letter to draft? We are always happy to help. Please speak to your usual Weightmans contact.