When it comes to dismissing an employee, there are right and wrong ways to go about it. Get it wrong, and you could find yourself in an Employment Tribunal. Financial awards for such claims can reach up to £165,000, with an average award of around £14,000.
The latest Employment Tribunal statistics show a 51% rise in successful unfair dismissal claims from the previous year. There are 5 fair reasons for dismissal and to terminate a contract of employment in the UK as set out under Section 98 of the Employment Rights Act:
- Some other substantial reason (SOSR)
- Statutory ban or statutory restriction
In this article, we examine what constitutes a fair dismissal for the reason of statutory bans or restrictions.
What is meant by a statutory ban or restriction?
We look to Section 98 (2) (d) of the Employment Rights Act which sets out the legal definition of a fair dismissal for reason of statutory ban/restriction.
‘that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment’.
In practice, this means that for legal reasons it would be unlawful to continue to employ someone in their role.
What are some examples of circumstances which could trigger a dismissal for a statutory ban/restriction?
The below is not an exhaustive list but dismissal for legal restriction or dismissal for a statutory ban can include:
- A medical professional losing their right to practice or a legal professional being disbarred
- A driver losing their driving licence
- Expiry of a UK work visa
- The loss of a qualification essential for the role e.g., Gas Safe, Health and Safety qualifications
- Being prevented from working with children or vulnerable persons by the Disclosure and Barring Service (Wales, England & Northern Ireland) or Disclosure Scotland.
Is a fair dismissal procedure required prior to dismissal for a statutory ban/restriction?
Yes. It is often assumed that because the employer can no longer legally employ someone in their role the employer can simply terminate the contract without following a fair dismissal procedure or giving notice.
However, a fair dismissal procedure is required prior to the termination of employment for any reason. Even a dismissal for one of the 5 potentially fair reasons risks being ruled as an unfair dismissal by an Employment Tribunal if fair dismissal reasons have not been followed.
What initial steps should the employer take to avoid an unfair dismissal for statutory ban/restriction?
The onus is on the employer to justify that the reason for the dismissal for statutory ban/restriction was genuine and fair. Therefore, conducting an investigation looking into the grounds for dismissal to ensure you act on material facts only is key.
For example, if a driver is awaiting a court hearing to decide if they will receive a ‘totting up ban’, it would not be reasonable for the employer to take action to dismiss the employee before or in anticipation that their licence will be withdrawn because the court may decide not to invoke a driving ban. In other words, the employer shouldn’t take action to dismiss based on assumptions.
The employee should be invited to attend an informal investigation meeting so they can assist you in establishing what has happened. Any material evidence relating to the grounds for dismissal should be gathered and advice from Avensure sought at the earliest opportunity.
Should an employee facing a statutory ban from working be placed on suspension?
There may be circumstances where it is not appropriate for an employee to remain at work, for example, if they are a care worker facing a ban by the DBS- so in some instances, an employee can be placed on suspension pending the outcome of any formal external proceedings which will determine the legalities of them being able to work.
There may be occasions where an employee facing a statutory ban can also be facing allegations of gross misconduct. For example, if the DBS investigation relates to an allegation of abuse against a vulnerable service user in the course of their employment. In this case, the employee may be facing a statutory ban, but their dismissal reason would likely be for gross misconduct.
Please note, employees suspended from work should be paid.
Where the investigation has established legal reasons for dismissal and that the employee cannot legally continue to work, is the employee invited to a disciplinary hearing?
Once legal reasons for dismissal have been determined the employee will be invited to a formal hearing to discuss the grounds for dismissal and their future employment. Unless there are elements of workplace misconduct relevant to the circumstances (such as the example above), this will not usually be a disciplinary hearing.
As part of the fair dismissal process, the employee will be invited to the formal hearing in writing. That letter will set out the matters of concern, and the impact on the employment and will forewarn the potential outcome- namely that they may be dismissed. The right to be accompanied by a trade union official or a fellow employee of the company should also be given.
What should the employer consider before taking a decision to dismiss?
It seems odd to suggest that the employer has anything to consider with a lawful dismissal, given that the employee is legally prevented from continuing to work but…
The employer must show that a fair dismissal process was conducted and the dismissal was the last and only option open to them.
This means that the employer should consider if there are means for the employee to continue to work. This doesn’t mean that the employer must create a job for someone but if there are employment vacancies the employee is suitable for, or a role that they can undertake with a reasonable amount of upskilling and training, this needs to be considered.
It may be that alternative work can be identified but not on the same number of hours. If the employee is prepared to continue to work but on a reduced hours basis or with a different shift pattern, again this needs to be considered.
Likewise, if the employee has any suggestions of their own which may avoid dismissal, the employee should be able to put them forward and they need to be fairly considered.
The length of time the statutory restriction is in place must also be considered.
For example, if an employee is facing a ban from driving for 6 months…
- Is dismissal the only option?
- Can the individual share a vehicle until their ban is up?
Perhaps driving does not account for 100% of their role, in which case dismissal may be hard to justify when they could work in a reduced capacity undertaking their remaining duties until such time they can resume driving again.
All options should be fully discussed as part of the fair dismissal process with the employee in the hearing before a decision to dismiss is made.
And finally……Employers can often feel it is unfair that they are required to carry out a fair dismissal procedure and look at alternatives to dismissal when often it is the employee’s fault they are in the situation they are in.
However, it is important to remember that it’s the employer who is actioning the dismissal for a statutory ban and the burden of proof to justify that dismissal is on them.
If you suspect an employee is facing a ban from working, for whatever reason, call Avensure without delay for pragmatic advice and support at every stage of the fair dismissal process along with bespoke correspondence throughout.
Conducting a fair dismissal procedure is frequently more difficult than employers anticipate, and given the legal complexities involved, the potential for errors is high.
If you need advice on how to dismiss employees fairly, want to understand the potential risks, or want step-by-step guidance through the disciplinary and dismissal process, please contact our employment team. Simply click here: Avensure Contact!