By Scott Beaman, Digital Writer for Slater Heelis
Dismissal is a term used to describe the termination of employment and although it would seem like a simple and swift occurrence, it is often complicated and can involve legal procedures at every stage.
Dismissal comes in many forms including voluntary redundancy and constructive dismissal. In the eyes of British law, dismissal is considered to be the last resort for employers who are consistently unhappy with their employees conduct. All forms of dismissal must be based on fair and reasonable grounds and in most cases, excluding summary dismissal for gross misconduct, it is required that a disciplinary procedure takes place in the lead up to an expulsion.
What Constitutes an Unfair Dismissal?
An unfair dismissal takes place when there is either an invalid or lack of reason for removing an employee from their post within a company. Unfair dismissal claims are intended to protect employees and allow for them to claim if they feel they have been treated improperly.
Employers are protected by the fact that unsuccessful unfair dismissal claims are very expensive; if found to be acting abusively or disruptively through their actions claimants can be forced to pay up to £20,000 in fees and damages.
Should an employee suspect that they were dismissed without good or fair reason, they may be entitled to an unfair dismissal claim. If you began your employment after 6 April 2012 then you must have completed 2 years continuous service to be entitled to a claim. The case will then be brought to a tribunal. It is strictly enforced that unfair dismissal claims must be submitted within three months of the termination of employment. The effective date is ninety days from the last date that an employee worked for the employer.
Why an Employee Might be Unfairly Dismissed
There is a host of reasons for dismissal that are automatically deemed unfair – in these occurrences a judge does not have to apply the minimum service period. These reasons include:
• Maternity/paternity/dependent care leave
• Jury service
• Seeking and taking agreed annual leave
• Requesting the minimum wage and flexible working hours
• Failing to disclose a spent conviction
• Making a protected disclosure against health and safety standards (whistle blowing)
• Being accompanied by a Trade Union representative to a disciplinary meeting
Fair reasons for dismissal include:
• An inability for an employee to undertake their job for a legal reason e.g. losing a related licence that is essential to the employee’s role.
An issue often flagged in unfair dismissal cases is consistency of conduct. Employers should be able to show the manner in which they have dealt with their employees is consistent throughout their workplace. A common complication is that surrounding implied contract. This is when an employee and employer’s consistent behaviour over the employment period (rather than what was initially stated in the contract) redefines the relationship on which the fair value exchange is based.
Gross misconduct is behavioural misconduct that undermines the employer’s confidence in an employee’s ability to carry out their duties. In most cases this ends with immediate effect, the contractual relationship between employer and employee. Examples of what constitutes misconduct are slightly open to interpretation and include behaviour such as:
• Gross negligence
• Endangering fellow employees safety
• Malicious damage
• Serious incapability through the use of alcohol or illegal drugs
Gross misconduct cannot be a mere professional failing; it must be a deliberate wrongdoing or considerable negligence.
Employment tribunals have the power to reward an unfairly dismissed claimant anything up to a years’ salary as reward. This is capped at a maximum of £76,574 and in most cases it is much lower. The tribunal is able to reinstate dismissed employees but this power is used on a discretionary basis and is rarely called to action.
In all cases of suspected unfair dismissal, managing the details of a case is essential. Ignorance will not be accepted as an excuse for a late claim – the only instance that the courts will consider redeemable for a late application is a serious illness. For this reason seeking legal advice at an early a stage as possible is vital. This will give you a much better chance of ensuring a prompt and proper claim.