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.
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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. |
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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 |
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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. |
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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. |
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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
- the employee has reached their retirement age
- some other substantial reason
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| 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. It is also important to show that the Employer has complied with the ACAS Code of Practice relating to Disciplinary procedures. |
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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
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unfair dismissal claims to a tribunal
If an employee feels they have been unfairly dismissed, they 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. |
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constructive dismissal
There are some circumstances whereby an employee who has not been actually dismissed by their employer can nevertheless claim unfair dismissal. Such cases are known as constructive dismissal claims. These occur in circumstances where an employee resigns and in so doing alleges that the actions of their employer were such that they were left with no alternative.
The employer will have been guilty of either a breach of an express written term of the employee’s contract of employment or of an implied term, often known as the duty of mutual trust and confidence. The rules relating to length of service and time limits to bring such claims are the same as for unfair dismissal claims. |
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redundancy
Redundancy is a potentially fair reason for the dismissal of an employee. To ensure the dismissal is fair, care should be given to ensure:-
- The employee's position is actually redundant
- The employee has been consulted and advised their job is at risk of redundancy before a decision is made
- The employee has been fairly selected for redundancy
- There are no suitable alternative positions available
In cases of redundancies involving 20 or more employees there are statutory minimum periods of compulsory consultation. |
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