As an employer, you may sometimes need to dismiss members of staff. And when you do, it's imperative that you make it clear that you are dismissing the employee for the right reasons and in the correct way.
In fact, there are 5 different types of dismissal: fair, unfair, constructive, summary, and wrongful. Let's go through them in more detail:
For a dismissal to be considered fair, the employer must have a valid reason for the dismissal, and they must also act reasonably during the disciplinary and/or dismissal process.
Examples of valid reasons include if the employee is:
- Being made redundant (see our guide to redundancy here)
- Incapable of performing their job properly
- Capable of performing their job, but unwilling to do so
- Not permitted to perform their job by law (if a professional driver loses their driving license, for example)
- The employee's contract clearly shows the planned end date (for employees hired to cover employees on maternity leave, for example)
- Known to have committed misconduct (see our guide to misconduct here)
Examples of acting reasonably include if the employer:
- Genuinely believes the reason for dismissal is fair
- Follows the correct dismissal procedures
- Investigates further into the situation, if appropriate
- Clearly describes (preferably in writing) to the employee the reasons for dismissal, invites them to share their views on the matter, and (if being dismissed due to misconduct) is confident that the employee understands the consequences of their behaviour
- Advises the employee of their rights to bring a colleague or trade union rep with them to any disciplinary and/or dismissal meetings
- Offers the employee the right to appeal the dismissal decision
If an employer does anything contrary to the actions in the 'fair dismissal' information above, they could well be challenged by their employee for having dismissed the employee unfairly.
In addition, there are specific reasons that have been defined as automatically unfair by tribunals and courts.
They include dismissal due to the employee:
- Having family reasons (e.g. pregnancy, maternity leave, paternity leave, parental leave, adoption leave, time off for dependents)
- Joining a trade union and/or acting as a trade union representative
- Acting as an employee representative
- Acting as an occupational pension scheme trustee
- Being employed on part-time or fixed-term basis
- Being of a certain age, gender, marital status, sexual orientation, race, religion, or for any other discriminatory reasons
- Having particular pay and working hours (the Working Time Regulations and National Minimum Wage rulings should always be adhered to)
- Disclosing wrongdoing in the workplace (whistleblowing)
- Taking part in lawful industrial action within 12 weeks of the industrial action stating or if the action lasts more than 12 weeks and you haven't tried to resolve the dispute with reasonable steps
- Being told to take compulsory retirement because of their age without there being a good reason for them to do so
This is where an employee leaves because their employer breaches the employment contract in a significant way, leaving the employee feeling as though they have no choice but to leave.
Breaches of this magnitude could include things like an unfair workload increase, unsafe work conditions, unagreed wage decreases, work location changes without ample notice, for example. It might be a combination of several of these things, or a series of lesser events that, taken together, amount to a serious problem for the employee, forcing them, in their view, to leave.
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