Many businesses will at some stage face the difficult task of having to dismiss an employee or a group of employees. Dismissals occur where:
- The employer terminates the contract;
- A limited-term contract ends and isn’t renewed;
- The employee resigns in circumstances where they’re entitled to do so because of the employer’s actions.
A dismissal is fair or unfair depending on the reason for dismissal and whether the employer acts reasonably during the dismissal process.
Constructive dismissal occurs where an employee resigns because the employer has substantially breached their employment contract. Examples could include:
- Cutting a worker’s wages without agreement;
- Unlawfully demoting them;
- Allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination;
- Unfairly increasing their workload;
- Changing the location of their workplace at short notice;
- making them work in dangerous conditions.
The breach of contract can result from either a single serious event or the last in a series of less serious events. Consequently the individual may claim constructive, unfair dismissal at an employment tribunal.
Wrongful dismissal is where a contractual term is broken in the dismissal process, e.g. dismissal without giving proper notice. In cases of gross misconduct – such as fighting or theft – employers may dismiss without giving any notice.
Eligibility to complain to a tribunal
Employees can usually claim unfair dismissal only if they have worked for the employer at least one year if employed prior to 6 April 2012 or at least 2 years if employed since 6 April 2012. However, a number of dismissals require no minimum period of employment – and are also automatically unfair, i.e. the tribunal will find that they are unfair even if the employer followed a correct dismissal procedure.
Automatically unfair reasons for dismissal
The tribunal will hold the dismissal of an employee to be unfair if they are dismissed or selected for redundancy due to:
- Pregnancy and childbirth
- Parental leave
- Health & safety reasons
- Whistle blowing
- Acting as a representative
- Seeking flexible working
- Jury service
- Taking part in protected industrial action
Penalties for unfair dismissals
If an employment tribunal finds that an employee has been unfairly dismissed, it may order the employer to reinstate or re-engage them. More commonly, a tribunal will award compensation, made up of a basic award which depends on the employee’s age, gross weekly pay and length of service, and a compensatory award.
Reasons for fair dismissals
In certain circumstances an employer will fairly dismiss an employee where it relates to capability or conduct, redundancy, illegality or some other substantial reason (SOSR).
A CLAIM FOR UNFAIR DISMISSAL MUST BE MADE WITHIN 3 MONTHS OF BEING DISMISSED
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