In the UK, there is a substantial body of law on bringing employment relationships to an end through dismissal. It is a particularly nuanced and complex area of law, which requires a deep understanding of the rules and procedures, as well as how they apply to the unique circumstances of any given case.
At Owen White & Catlin, we regularly help employers and employees resolve issues surrounding dismissal, whether it is ensuring the dismissal is fair or defending against allegations of unfair dismissal. Below we provide a brief overview of some of the aspects relating to unfair dismissal. If you would like to discuss how this could apply to your situation, please contact us.
Unfair Dismissal
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; or
- 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
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; and
- 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.
Wrongful Dismissal
Wrongful dismissal is where a contractual term is broken in the dismissal process, e.g. dismissal without giving proper notice.
Eligibility to Complain to the Employment Tribunal
Employees can usually claim unfair dismissal only if they have worked for the employer for at least 2 years. 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 Dismissals
The tribunal will hold the dismissal of an employee to be automatically unfair if they are dismissed or selected for redundancy due to:
- pregnancy and childbirth;
- parental leave;
- health & safety reasons;
- whistleblowing;
- victimisation;
- acting as a representative;
- seeking flexible working;
- jury service; and
- 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
The Employment Rights Act 1996 sets out five potentially fair reasons that an employer may lawfully use to dismiss an employee. These are:
- capability, which includes poor performance and ill health;
- conduct;
- illegality;
- redundancy; and
- some other substantial reason (SOSR).
Dismissals on Capability Grounds
Sometimes an employee is incapable of doing their job to the required standard. This may be because:
- they don't have the right skills or aptitude for the job; or
- they are ill and therefore unable to attend work regularly and/or do their job properly.
In most cases, an employer can help an employee improve by taking informal action, e.g. by offering training/mentoring or another suitable job. If, after taking informal action, they don't improve and their poor performance continues to affect the business, an employer might then consider formal disciplinary action.
Dismissals on Conduct Grounds
An employer can consider dismissing an employee on conduct grounds if they:
- can do their job but are unwilling or reluctant to do it properly; or
- commit some form of misconduct, i.e. they do something that breaches disciplinary rules.
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Contact our Unfair Dismissal Solicitors in London, Surrey and Middlesex
At Owen White & Catlin, we have a dedicated team of solicitors who specialise in unfair dismissal as it applies to both employers and employees. We regularly help individuals understand their employment rights, and businesses and organisations manage their relationships with employees. Contact us using our online
