Dismissal occurs when an employer ends an individual’s employment. There are various ways of ending someone’s employment, three of which include:
· Employer’s termination of an employee’s contract. They do not always have to give notice
· Expiry of an employee’s contract, which is for a fixed term only and not renewed by the employer
Where someone is dismissed, their employer must inform them:
· Why they have been dismissed
· When their employment will end
· What their notice period is if applicable
· Their right to appeal
This should be put in writing – and must be done so if the employee is pregnant or on maternity leave.
It is also possible to agree a settlement agreement where the working relationship is no longer feasible.
Constructive dismissal occurs where the employee believes they have no choice but to resign due to their employer’s conduct, for example:
· You are not paid by your employer or they demote you suddenly without providing a reason
· Your employer forces you to accept unreasonable changes to how you work, for example, instructing you to work 3pm-10pm when your contract is only for normal working hours
· Your employer allows other employees to harass,intimidate or bully you
To dismiss an employee, an employer must:
· Give a fair reason for the dismissal
· The reason was enough to justify the dismissal
· Follow a full and fair procedure
Following a fair procedure means that the employer:
· Investigates any employee issue(s)
· Informs the employee of the issues in writing
· Conducts a disciplinary hearing or meeting with the employee
It is for the employer to show the reason (or the main reason) for the dismissal.
There are five categories which determine the circumstances where a dismissal may (though not guaranteed to) be considered fair – these are where an employee has been dismissed because of:
· Capability or qualifications, for example, poor performance
· Gross misconduct issues such as physical violence, theft, dishonesty or disobeying reasonable orders
· Redundancy because of an intended business or workplace closure
· Statutory restriction, which means there is a law which prevents an employee from continuing to work without putting themselves, or their employee, in contravention of that law
· Some other substantial reason - this is essentially a catch-all for any other dismissals that do not fall within the categories above but are deemed to be fair
Gross misconduct occurs when an employee has done an action that is very serious or has very serious effects, for example:
A reason is automatically considered fair if the decision to dismiss an employee has been taken by the employer for reasons such as:
· Safeguarding national security
· The employee was taking part in an unlawful industrial action at the time of dismissal, so the trade union didn’t hold a ballot when arranging the industrial action
A dismissal could be unfair if an employer does not:
· Have a good reason for making the dismissal
· Follow the company’s dismissal process
Employees have a right to not be unfairly dismissed. This means they may be able to take legal action if their dismissal is found to be unfair. To have this right, an employee must be able to show:
· A valid contract of employment
· Under that contract of employment, they have been employed continuously by the same employer for at least two years (known as the ‘qualifying period’)
A contract of employment does not have to be a written document setting out the terms of contract – it may be verbal or implied.
Employees often ask what the law is on breaks at work. Workers are entitled to three types of break:
ACAS recommends that dismissal due to sick leave should be a last resort. Dismissal may be permissible and fair but it will depend on the circumstances, and the employer should attempt to support the employee to return to work. The dismissal must be fully investigated and be for a valid reason.
There exist circumstances where an individual will be automatically exempt from claiming unfair dismissal, including:
· The contract of employment was itself illegal, for example, the employee had no right to work in the UK
· The individual was dismissed for taking part in an unlawful industrial action
Some reasons for dismissal are deemed automatically unfair, including those relating to:
· Childbirth or pregnancy
· Taking family leave
· Exercising your right to having time off
· Making a flexible working request
· Requests for a legal right such as national minimum wage
· Time off for jury service
This occurs where the dismissal breaches an employee’s contract, usually in relation to notice or pay for notice periods. The length of service is not a factor here in deciding if a claim can be brought.
If you are dismissed, or otherwise threatened with a dismissal, you could try addressing the issue directly with your employer with the help of either:
· A mediator or arbitrator
· A union representative if you’re a member of a trade union
If you are unable to solve the issue with your employer directly, you can go to an employment tribunal if you believe your dismissal has been unfair. The employee needs to first notify Acas who can offer “early conciliation” which is a free service to try and mediate between the employee and employer before needing to go to a tribunal.
In a claim for unfair dismissal, the onus will be on the employer to show the reason for dismissal and why the dismissal was fair.
On the basis that the employer has established a fair reason for dismissal, the employment tribunal will then have to decide whether the employer had acted reasonably in dismissing the employee for the reason specified.
It is important therefore that employers ensure that a fair procedure is followed when dismissing an employee. This means, in the context of dismissing an employee for conduct or performance reasons, following the Advisory, Conciliation and Arbitration Service (Acas) Code of Practice, which sets out the standards of fairness and reasonable behaviour that employers and employees are expected to follow when dealing with a dispute. If your employer does not have their own policy, then the Acas Code should be followed.
If you are considering going to the employment tribunal, you should be aware that any claim must be made with three months minus one day from the end of employment (so either the last day of the notice period or the day of dismissal of there was no notice).
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.