What’s fair and what’s not when it comes to employee dismissal?

Employment law exists to protect employees from wrongdoings in the work environment. When it comes to employee dismissal, knowing your rights helps to establish whether you’ve been dismissed fairly, or recognising when your employer may be breaking the law.

All employers, when dismissing an employee, must provide a valid and justifiable reason as to why the employee has been dismissed and must show that they have acted reasonably both in terms of their decision and procedurally. This includes performing appropriate investigations and being consistent in what actions were performed that resulted in dismissal.

It is important to quickly determine whether you have been unfairly dismissed, as there is a strict time limit of three months for your claim of unfair dismissal to be presented to the Employment Tribunal, with a caveat that the clock is stopped when one engages in ACAS early conciliation.

Fair Dismissal

A fair dismissal occurs when an employer has given notice of dismissal with fair reason. Of course, for this to occur, as set out above, they must have followed correct procedure leading up to dismissal.

There are a variety of reasons through which a dismissal may be considered ‘potentially fair’ that we have listed below:

Capability – Capability can be defined as a situation when, after disciplinary procedures and fair warnings have been given, an employee continues to not do their job properly. Therefore, they are deemed incapable of doing their job. Aside from the work itself, capability is also a fair reason for dismissal if the employee does not get along with their colleagues.

Summary Dismissal – It is fair and legal to be dismissed immediately without the employee working a notice period if misconduct has included acts such as violence. An employer must make a proper investigation into any misconduct accusations before a summary dismissal can occur.

Illness – After a reasonable recovery period from illness, as long as an employer has considered ways to support an employee during a period of illness, dismissing an employee due to a long-term persistent illness is considered to be fair dismissal. However, this is almost always a last resort and, if the employee has a disability, any dismissal based on the disability would be unlawful discrimination.

‘Statutory Restriction’ – It is considered fair dismissal if continued employment would result in an employee breaking the law. For example, an employee that drives for a living and loses their driving license would no longer be able to do their job and could be dismissed fairly.

Redundancy – Most redundancies are fair. Despite this, if an employee believes that their redundancy has been chosen based on age, gender, race, disability or pregnancy, then this is classed as an unfair dismissal.

Substantial reason – While not set out in law, this means that an employer has shown good reason for dismissal. For example, if an employee is unwilling to accept changes to their company’s employment terms.

Unfair Dismissal

The unfair dismissal of an employee can be broken down into two areas. Firstly, the employer doesn’t have a good reason for dismissal; or that an employer hasn’t followed formal dismissal procedures when dismissing an employee.

Reasons for dismissal that would likely be considered unfair would include:

  • Whistleblowing
  • Joining a trade union
  • Taking part in legal industrial action of 12 weeks or less
  • Refusal to give up working time rights – e.g. to take rest breaks
  • Time off for jury service
  • Applying for, or being on, maternity, paternity or adoption leave
  • Compulsory Retirement – this occurs when an employee is forced to retire

Lastly, as a form of unfair dismissal, there is constructive dismissal. This occurs when an employee feels as though they need to leave their job against their will. Therefore, the normal dismissal procedure has not occurred.

Actions which employers might take that would force you to leave must be serious. These would include sudden demotions, arbitrary changes in work location, or not receiving your pay. You could also be forced to accept unreasonable changes in your work environment. This could include being forced to work outside of your contracted hours, as well as bullying or harassment from other employees. All of these issues could occur as one severe incident, or as a succession of smaller issues that would culminate into a serious incident.

If you think you may have been unfairly or wrongly dismissed, contact one of Warners Solicitors’ employment law specialists today to discuss your queries further.

Send us a message or call 01732 770660

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