Client Factsheets

There have been many changes to employment law and regulations in the last few years. A key area is the freedom or lack of freedom to dismiss an employee.

An employee’s employment can be terminated at any time but unless the dismissal is fair the employer may be found guilty of unfair dismissal by an Employment Tribunal.

We set out below the main principles involved concerning the dismissal of employees. We have written this factsheet in an accessible and understandable way but some of the issues may be very complicated.

Professional advice is important before any action is taken.

Reasons for a fair dismissal would include the following matters:

the person does not have the capability or qualification for the job (this requires the employer to go through consultation and/or disciplinary processes)

the employee behaves in an inappropriate manner (the terms and conditions of employment should refer to what would be unreasonable behaviour and the business must go through disciplinary procedures)

redundancy providing it is a genuine redundancy with no suitable alternative work, there has been adequate consultation and there is no discrimination in for example, who is selected

the dismissal is the effect of a legal process such as a driver who loses his right to drive (and the employer is expected to explore other possibilities such as looking for alternative work before dismissing the employee)

some other substantial reason.

After one year’s service employees can make a claim to an employment tribunal for unfair dismissal within three months of the date of the dismissal and if an employee can prove that he/she has been pressured to resign by the employer he/she has the same right to claim unfair dismissal.

If the employee proves his/her case the Tribunal can come up with three remedies which are:

re-instatement which means getting back the old job on the old terms and conditions

re-engagement which would mean a different job with the same employer

compensation where the amount can be anything from a smallish sum to an unlimited amount if the dismissal was due to some form of discrimination.

If the dismissal is demonstrated as being due to any of the following it will be deemed to be unfair regardless of the length of service:

discrimination for sex, race or disability

pregnancy, childbirth or maternity leave

refusing to opt out of the Working Time Regulations.

On many occasions a dismissal which seems quite justified to the employer will be found to have been unfair if correct disciplinary proceedings were not followed. ACAS (the Advisory, Conciliation and Arbitration Service) has developed a Code of Practice on Disciplinary and Grievance Procedures and it is recommended that employers should follow this code.

The Code of Practice, which can be obtained from ACAS on 020 7396 5100 or directly from their website, covers:

disciplinary practice and procedures in employment, including:

why have disciplinary rules and procedures

formulating policy

rules

essential features of disciplinary procedures

the procedure in operation

dealing with absence

dealing with poor performance

dealing with special situations

appeals

records

further action

grievance procedures

the statutory right to be accompanied at disciplinary and grievance hearings.

We will be more than happy to provide you with assistance or any additional information required.