Blog Post Written By Chamber Benefactor Giambrone & Partners LLP
Dismissal of an employee must be managed within the law and adhere to employee rights in the Employment Rights Act 1966. There are various ways in which an employee can be dismissed. Your employer must have a valid legal reason for your dismissal and must act reasonably.
Advisory, Conciliation and Arbitration Service (ACAS) provides the steps that should be followed. An employer must carry out an investigation into the circumstances that have led to the belief that there is a valid reason for dismissal. They should also tell the employee that they are under consideration for dismissal and why they are under consideration. The employee in question should be able to voice their opinion and their views must be listened to. At any disciplinary or dismissal hearings, a third party may accompany the employee should the employee wish. The employee should then be offered a chance to appeal.
Daniel Theron, a partner, pointed out “there is no legal definition of “reasonableness in the Employment Rights Act 1966, however, a tribunal will not look favourably on an employer that has not followed the steps prescribed by legislation and ACAS. Unfair dismissal is one of the most frequent claims heard at the Employment Tribunal.” Daniel further commented “if an employer has not followed the ACAS guidance during a disciplinary or dismissal procedure and the Employment Tribunal finds that employee to have been unfairly dismissed the award may be increased by up 25%. ACAS guidance is not binding in itself however, it is nevertheless taken into account”
Fair Dismissal
Fair reasons for dismissal are as follows:
- Redundancy
- Serious illness prevents you from doing your job
- Conduct
- Capability
- Legally unable to continue employing the person, such as a lorry driver losing their heavy goods licence or expiry of a right to work Visa
- Summary dismissal – gross misconduct
- Other substantial reason, for example, the end of a fixed-term contract, refusing to accept new terms and conditions or a client refusing to deal with an employee
The dismissal and disciplinary procedures should be set out in writing and all employees should be aware of them. If your employer has not done this the Employment Tribunal can instruct the employer to pay the outgoing employee compensation. Also, all employees should be aware of what is expected of them and what is deemed to be unacceptable conduct in the workplace and the consequences of such behaviour. In the event of gross misconduct, such as fraud or violence, that leads to summary dismissal, the employee should be suspended on full pay and the incident or incidents should be thoroughly investigated in accordance with a fair procedure as you would do for any other disciplinary matter.
All employees taken on a short-term temporary basis, such as maternity cover, can be fairly dismissed at the end of the period provided they were aware of this at the beginning of their employment.
Every effort must be made to make adjustments for a person whose capacity in the workplace has been limited by illness.
Unfair Dismissal
Often employers believe that they have fairly dismissed an employee when it is not the case. If the reason for dismissal was not valid or unfair if there was an inadequate warning or no opportunity to appeal the dismissal.
There are many automatically unfair reasons for dismissal, examples of which are as follows:
- All reasons connected to pregnancy and family including parental leave, and matters related to adoption and birth.
- Time off for dependants
- Joining a trade union or refusing to join a trade union
- Acting as an employee representative
- Acting as a trustee for an occupational pension scheme
- Being a member of a trade union
- Whistleblowing
- Reasons connected with being a part-time or fixed-term employee
- Reasons connected with working hours, pay, working time regulations, national minimum wage or annual leave
- Compulsory retirement
- Participation in lawful industrial action – dismissal within a12 week period from when the industrial action starts if the action extends for 12 weeks without action to resolve the dispute. Only a Tribunal can decide if an employer has taken such steps.
- Locking out employees
- Reasons related to political or religious beliefs
The basis of making a claim must be carefully considered with the factual circumstances of any particular matter and whether an employee has attained a two-year period of qualifying employment. To claim unfair dismissal, then it is likely that the period of qualifying employment must be met. However, if the circumstances amount to automatic unfair dismissal, this is not the case.
Giambrone & Partners’ highly experienced employment lawyers point out that the awards that the Employment Tribunal extend do not have any relation to the financial position of the employer but are entirely focused on the employee and the detriment experienced. Their lawyers point out that it has been noted that employees of large organisations may feel that they cannot challenge decisions made to dismiss them. However, their lawyers have achieved many notable successes against global organisations that have unlawfully dismissed employees.
