KH Writes: I have an employee who is going to be dismissed due to their poor performance. Can I advertise for a replacement before I dismiss the current employee?

Employees who reach two years’ service with their employer gain the right to not be unfairly dismissed. Not only does this mean that the employer has to have a fair reason for dismissal but they also need to have followed a fair procedure, as guided by the Acas Code of Practice on Disciplinary and Grievance Procedures.

A fair procedure includes giving the employee the right to appeal against the dismissal. The impact of this is that the dismissal is not final until this last part of the procedure has occurred. Appeals can lead to the dismissal being overturned; in these circumstances, the dismissal essentially disappears and the employee is automatically reinstated. Advertising for a replacement before dismissal, and before the appeal has taken place, could leave the business in a situation where a replacement has been recruited for a role that is still occupied by the employee who has successfully appealed. Both individuals will be entitled to the job so the employer will either have to withdraw the offer, so long as it has not been accepted, or give the new recruit notice to end their employment. This is either contractual or reasonable notice but may be paid so could lead to the employer being out of pocket.

The outcome of a dismissal procedure must not be predetermined and should be based on the matters brought to light and discussed at the disciplinary hearing and any appeal hearing. Advertising before the dismissal hearing has taken place could lead to accusations that the decision was arrived at before the hearing took place. Similarly, if an appeal is heard and this fails, there is even more cause to cry foul and say that the outcome of the appeal was prejudiced.

The advertisement itself can be used as evidence against the employer at any later tribunal claim. In an unfair dismissal claim, tribunals will assess the fairness of the procedure followed. If the need for an immediate replacement does require early advertising of the role, employers will have to show that this had no impact on their decision reached or the fairness of the procedure itself.

The safest option for employers is to deal with the dismissal procedure in a timely manner so that recruitment can take place after the outcome has been determined. This will require employers to avoid long delays between meetings, to gather evidence as soon after the incident arises as possible and to suspend for a reasonable length of time, not indefinitely. Fairly reaching the end point will allow the notice period to be used for recruiting a replacement.