Employment Law - Dismissal Situations

Many employment problems arise when there is a dismissal situation. By their very nature these situations can be stressful for employers and employees, and it can be easy to make mistakes. This brief guide explains a little more about dismissals, whether they are fair or unfair, and how to avoid potentially damaging mistakes.

introduction notice periods for dismissal written reasons for dismissal fair dismissal unfair dismissal unfair dismissal claims to a tribunal

introduction Employers have the right to dismiss their employees, providing they give sufficient notice. Providing the employer acts fairly and reasonably, and that the dismissal is for a fair reason, a dismissal will be lawful.

notice periods Employers are obliged to give employees notice of their dismissal. The length of notice an employer must give normally depends on the employee's length of continual service. The minimum notice periods are shown below: Length of service Notice period 1 month to 2 years 1 week 2 years to 12 years 1 week for each complete year Over 12 years 12 weeks

If a different (longer) notice period has been agreed in an employee's contract, the longer period will apply. If a dismissal is as a result of gross misconduct, no notice is given.

written reasons for dismissal If the employee who is to be dismissed has been employed for more than one year, they are entitled to written reasons for their dismissal. Details must be supplied within 14 days. If a woman on Maternity Leave is dismissed, she must always be given written reasons, regardless of length of service.

fair dismissal One of the most common areas of confusion is identifying when a dismissal is fair. A dismissal will be fair if it satisfies two conditions. It must satisfy both. This first condition, is that the reason for the dismissal must be one of the following:

that the employee is unable or unqualified to do the job (capability) that the employee's conduct is unacceptable (for example, continual poor attendance, dishonesty or abusive behaviour) that the employee can simply no longer continue in their position (for example a van driver losing his driving licence) that the job itself is redundant some other substantial reason

The second condition is that the employer must act reasonably in deciding to dismiss the employee rather than, for instance, taking some other form of disciplinary action. It is important to note that what is considered fair and reasonable, depends on the circumstances and on the size and administrative resources of the employer's business.

unfair dismissal Unfair dismissal, by the very nature of the definition, is a dismissal which does not satisfy the two conditions mentioned above. There are however, certain dismissals which are automatically unfair. Some examples are:

being pregnant or on maternity leave being a trade union member taking part in trade union activities taking actions on the grounds of health and safety seeking to enforce statutory employment rights (for example asking for written terms and conditions of employment) refusing to do shop work on a Sunday making a disclosure within the Public Interest Disclosure Act (the whistle-blowers' act) reasons connected with the transfer of an undertaking from one employer to another unless there are economic, technical, or organisational reasons for doing so reasons connected with the National Minimum Wage

unfair dismissal claims to a tribunal If an employee feels they have been unfairly dismissed, it may take their complaint to an Employment Tribunal providing that they have one year's continuous service at the time of dismissal. If a dismissal falls into the automatically unfair category (see above), the one year rule does not apply (unless it relates to the transfer of an undertaking). A complaint to a tribunal must normally be made within three months of the dismissal taking place. If the Tribunal decides that the dismissal was unfair, they can order the employer to re-employ the employee. More usually however, they will order the employer to pay compensation to the employee. Certain groups of workers are not allowed to take a complaint to the Tribunal. These include the self-employed, most people working outside the UK and certain groups of public servants.