EMPLOYMENT LAW

Dismissal at Work – a simple guide

Employer’s should follow a formal process when dismissing an employee.

Dismissal at work is when your employer ends your contract of employment. The law provides protection from some forms of dismissal, and requires your employer to follow certain processes when sacking employees.

What are fair reasons for dismissal?

There are a number of reasons for dismissal:

CONDUCT/MISCONDUCT
CAPABILITY (AS IN ILL HEALTH OR PERFORMANCE)
REDUNDANCY
LEGALITY
SOME OTHER SUBSTANTIAL REASON

What is Unfair Dismissal?

Unfair dismissal is where an employer dismisses an employee who has more than 2 years’ service without a potentially fair reason to dismiss and without following a fair procedure before deciding to dismiss them. Sometimes, employees can claim unfair dismissal with less than 2 years’ service, but this depends on the circumstances.

What is Misconduct?

Conduct is a potentially fair reason for dismissal. Misconduct means any behaviour by the employee that the employer was unhappy with. It can be a single act of misconduct or a series of less serious acts. It could include disobeying reasonable management instructions, theft/dishonesty, violence at work, unauthorised absence, poor attendance.

What are Capability & Performance issues?

Capability is a potential fair reason for dismissal. It covers capability in terms of health/fitness, and also capability in terms of performance, skill, aptitude and so on. In either case it means capability for doing the job in question. Capability in terms of health can run into disability discrimination related issues but can mean being off sick and unable to return to work in a reasonable time. Performance means things like failure to meet targets, not having the required qualifications, or failing exams.

What is Redundancy?

Redundancy potentially means several things:

where the employer stops, or plans to stop, carrying on the business in which the employee was employed – i.e. intends to close the business completely.
where the employer stops or plans to stop carrying on the business in the place where the employee works – i.e. closure of the employee’s workplace
where the employer has a reduced requirement for employees to do the job in question at the place the employee is employed to do it – i.e. a reduced requirement for the particular number of employees to do the job in question

What are Legality reasons for dismissal?

It is potentially fair to dismiss an employee where to continue to employ them would contravene a statutory restriction. For instance, it would be illegal to employ someone who didn’t have the right to work in the UK because they don’t have the correct immigration status to entitle them to work. The employer could fairly dismiss someone in those circumstances.

Gross misconduct can result in instant dismissal.

What is an SOSR?

“SOSR” is the catch all – it’s potentially fair to dismiss an employee where there is some other substantial reason that could justify the dismissal of an employee in the employee’s position.

Is Dismissal the same as being fired or sacked?

Yes, it’s just the formal term that’s used in employment legislation such as the Employment Rights Act 1996.

What is Gross Misconduct?

Gross misconduct is very serious misconduct that could lead to dismissal, with or without notice (summary dismissal) for a single offence. Gross misconduct offences include theft, violence, sexual harassment, or a series of less serious misconduct offences. The employer’s disciplinary process should set out the offences they regard as gross misconduct – this will tend to vary between different employers/types of business.

Can I be sacked without a written warning?

Yes, your employer can always sack you – the question is whether it is fair or not. It depends on the seriousness of any misconduct as to whether it’s fair to dismiss you without a prior written warning having been issued. The employer’s disciplinary process should set out the potential sanctions and when they would usually be imposed.

What is Constructive Dismissal?

Constructive dismissal is where an employee resigns in response to something their employer has done to them which is regarded as a really serious breach of the employee’s contract of employment. It’s not where an employer dismisses an employee, that’s a common misconception. If your employer treats you really badly, say they remove your duties and responsibilities without consultation, then you may be being constructively dismissed.

Don’t resign before getting advice though – constructive dismissal is really hard to prove, particularly without an attached discrimination claim or other type of claim – and it’s important to go through the right steps before actually resigning.

Will I get paid if I am sacked?

If you are dismissed with notice (rather than being summarily dismissed), you should be paid salary up to the date of termination plus pay in lieu of notice, or else be permitted to work out your notice period. Either way, you should receive notice pay. You should also receive accrued holiday pay for any holiday days accrued up to termination but not taken.

If you are summarily dismissed, you won’t be entitled to notice or notice pay, but should be paid up to the date of termination.

Need more help?

If you need more help with the subjects covered here then do reach out to our expert online employment law solicitors. You can email us at employment@qlaw.co.uk or call 03300 020 863.