Dismissal from work is often a controversial and emotionally motivated subject and there are often two sides to each story. However, dismissal is a subject that is regulated by many rules and regulations that govern exactly what can or can’t legally be done. The following article will give guidance on some of the issues around dismissals and termination of contracts.
The first thing to do establish is exactly what dismissal is. Dismissal is the act of terminating the contract of an employee and is the last resort in regards to disciplinary methods at the disposal of an employer.
Dismissals can generally be filed into four categories; fair dismissal, unfair dismissal, constructive dismissal and wrongful dismissal.
In order to dismiss an employee legally, an employer must have a valid reason for doing so. A fair dismissal is one that occurs due to reasons that are deemed ‘fair’. Reasons that are generally deemed fair include:
- Employees that are unable to perform their job role to the required standard
- Employees that are unwilling to perform their job role to the required standard, despite being able
- Serious or gross misconduct; it’s worth noting that an employee can be dismissed for misconduct that is not considered serious or gross, however, they must first go through the disciplinary procedures set out in their contract
Even if you think that an employee has been dismissed fairly, they can still claim against you for unfair dismissal if they think that the reason they were given for dismissal wasn’t the real one, they think that the dismissal was unreasonable or they think that they have been treated unfairly.
There is a wide array of reasons that instantly render a dismissal unfair including – but not limited to:
- Pregnancy and maternity/paternity leave
- Family or parental leave
- Discrimination including disability, age, gender reassignment, race, sex, sexual orientation and religion
- Trade union allegiance
Unfair dismissal claims should be taken very seriously as they can have noticeable implications on a business. If a tribunal rules in favour of the (ex) employee there is a number of possible eventualities. One possibility is re-instating (give old job back) or re-engaging (re-employ in a new role) the employee, this is not always possible or desirable though, so a more frequent conclusion is the awarding of compensation. The level of compensation varies depending on the circumstance, however most cases have an upper limit of £74,200 at the time of writing. Notable emissions from this cap are cases related to health and safety or whistleblowing.
Constructive dismissal is the term used to refer to cases in which an employee resigns due to their contract being broken by the employer. This can refer to a single serious event or a multitude of less serious events. Employees are entitled to claim for constructive dismissal if their wages are cut without agreement, they are unlawfully demoted, their workload is unfairly increased, they are forced to work in unsafe conditions and if their workplace permanently changes location at short/unreasonable notice. It is worth noting that a constructive dismissal is not automatically deemed unfair, however it is generally difficult to prove that breaking an employee’s contract is a fair action.
The final category to look into is wrongful dismissal; this refers to a company breaking the terms of an employee’s contract during the dismissal process, i.e. not following the dismissal process set out in the employment contract. Wrongful dismissal is seen as being different to unfair dismissal and is treated as such.