Employment Law Dismissal
If an employer is to fairly dismiss one or more employees, there must exist at least one of four legitimate reasons, as decreed by UK employment law. This means that the dismissal must be related to:
* disciplinary issues
* work place performance
The fourth is more vague and is a “catch all” headed “Some Other substantial Reason”.
Aside from there having to be a very good reason for a dismissal, employers also must follow a specific, legally recognised process. If the dismissal relates to employee performance or conduct, then it should follow the procedures laid out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. If it relates to redundancy, there is also a recognised redundancy process to which it must adhere, which includes consultation with the affected employees. It also depends on exactly how many employees are affected.
The difference between unfair dismissal and constructive dismissal...
Although people use the terms unfair dismissal and constructive dismissal interchangeably, there is in fact a distinct difference between the two. Unfair dismissal relates to a situation where the employer has terminated the employment relationship. If none of the reasons set out above apply the dismissal will be unfair. Even if they do the dismissal can still be unfair if appropriate processes haven’t been followed or the Tribunal doesn’t believe the dismissal to be justified. Constructive dismissal refers to any case when employees resign because they have been treated so badly by their employers that they are simply unable to continue working under such circumstances. It is often referred to as being "forced out" of a job. The dismissal may also be an unfair dismissal.
What employees need to know...
In cases of both unfair dismissal, an employee is normally expected to have been employed in their role for at least two years. Exceptions do apply. One of the most common exceptions is when the dismissal is as a result of an employee asserting a legal right of whistleblowing.
If an employer feels that because an employee has been with them for less than two years, they can be dismissed without following legal process, that may be looking at matters too simply. Discrimination claims are separate from unfair dismissal and require no qualifying period. Therefore, it is very important that employees realise that regardless of how long they've been employed, they still have rights and should seek legal advice if they have been treated badly.
What employers need to know...
It is very important for employers to have in place effective and up-to-date disciplinary and grievance procedures. Employers that have procedures that are ineffective and unwieldy may find themselves in legal difficulties.
All employers should review their disciplinary and grievance processes regularly and ensure that they are fit for purpose. It is often smaller employers who are unprepared for such situations as they can't imagine they will ever find themselves having a legal struggle with their staff. In all cases, however, it is important to remember that as far as Employment Tribunals are concerned, ignorance of employment law or lack of preparation is not an excuse and failure to have proper employment procedures and policies in place is a major negative from the outset.
Taking advice about dismissal processes and dealing with difficult employment situations can save a lot of time and money in the long term.
Davies and Partners specialise in offering guidance and legal advice to both employees and employers, so if you require some clarification as far as employment law is concerned, please contact our specialist employment law team today.