We are a fairly small organisation and every member of staff has to pull their weight. One person is not doing so, they are basically lazy, often late, disruptive and have a very poor short-term sickness record with lots of individual days off. Given all this is there any reason why I can’t just dismiss them?
No you simply can’t terminate in the way you suggest without running the risk of a finding of unfair dismissal (assuming the individual has at least 2 years service) should you end up at an employment tribunal. You need to ensure you have a fair reason to dismiss. The fair reasons in law for dismissal are:
1. Conduct – if they have broken the terms of their employment through such things as continually missing work, poor discipline or theft / dishonesty.
2. Capability – where they are unable to perform to the required standard for reasons such as inability to deal with new technology, inability to get along with fellow workers, or long-term persistent illness. (However if the long-term illness relates to a disability you have a legal obligation to make ‘reasonable adjustments’ to help the individual to work).
3. Redundancy – where there is no longer any, or enough, work for the employee in your workplace.
4. A Statutory Restriction – you can fairly terminate if continuing to employ would break the law e.g. you employ a driver who loses his licence. You would be expected to look for alternative employment before dismissal.
5. Another Substantial Reason – this is a general catch-all of other reasons – these can be such things as imprisonment of the employee, an unresolvable personality conflict etc. Generally the other reasons for dismissal should not be relied on where possible as it is often more difficult to prove a ‘substantial’ reason.
In the case you refer to, I would suggest you look at going down the conduct route, and so you really need to have an effective disciplinary procedure in place. You will find one on this site. Ensure you properly investigate each episode of misconduct that you identify, and issue warnings as appropriate. These soon mount up, and the individual concerned will either get the message and improve their behaviour, or you will have enough information to safely dismiss them.
(Article updated April 2018)