Having carefully considered all the evidence in a case of misconduct, you’ve decided to dismiss the employee. Why should you never say to them that you have no alternative?
Because you do: don’t dismiss.
Investigation
You may have many reasons to dismiss: an act of gross misconduct or repeated misconduct such as not following instructions or repeated lateness.
When you wish to dismiss someone, you need to investigate and follow a fair procedure.
Dismissal may be the best or most appropriate option for your business, in your industry in your circumstances. However, saying that you have no other option will, in most cases, not only be factually incorrect, but will suggest to a tribunal that you have unreasonably closed your mind to any alternative options such as a final written warning, further training or a change in the employee’s job or duties.
Risk
This creates the risk that the tribunal could find that your decision to dismiss was unfair. Depending on the circumstances, the employee could also allege that there has been some form of discrimination and their dismissal is a sham exercise. If the tribunal agrees, it could be expensive and damage your reputation. Remember employment tribunal judgments are published online and searchable.
Avoid
Avoid saying ‘our only option is to dismiss you’ or ‘we have no other alternative but to do dismiss you’.
Possible exceptions
You may be able to use the dreaded phrase where you have a statutory bar on their employment. Examples are a driver who has been disqualified from driving; an employee who can no longer work without contravening the illegal working provisions or an employee who works with vulnerable adults or children who has been placed on the Disclosure and Barring Service Barred List. However, even in these cases, there may be other jobs available in your business that the employee could take up and you would need to show that there were none or they were not viable.
