Meaning of Dismissal
Dismissal is defined as the termination
of employment by:
-
the employer,
with or without notice; or
-
the employee's
resignation, with or without notice,
where the employee has resigned
because the employer by his or her
conduct, in breach of the contract
of employment, has shown an
intention not to be bound by the
contract (this is commonly known as
'constructive dismissal' (see
below)) or
-
the expiry of a
limited-term contract without its
renewal. A limited-term contract is
a contract for a fixed term or the
performance of a specific task, or
one which ends when a specified
event does or does not occur.
If, after being given
notice of dismissal by the employer, an
employee gives due notice, in writing or
otherwise, to terminate the contract of
employment at an earlier date than
required by the employer, the employee
will still be regarded as dismissed by
the employer but the effective date of
termination will be the date that the
employee's own notice, rather than the
employer's notice, takes effect.
Constructive
Dismissal – Breach of Contract by the
Employer
A tribunal may rule
that an employee who resigns because of
conduct by his or her employer has been
'constructively dismissed'.
For a tribunal to
rule in this way the employer's action
has to be such that it can be regarded
as a significant breach of the
employment contract indicating that he
or she intends no longer to be bound by
one or more terms of the contract: an
example of this might be where the
employer arbitrarily demotes an employee
to a lower rank or poorer paid position.
The contract is what has been agreed
between the parties, whether orally or
in writing, or a combination of both,
together with what must necessarily be
implied to make the contract workable.
When is a Dismissal
Fair or Unfair?
The law on unfair
dismissal does no more than give
employees a legal right to be treated in
the way in which a fair and reasonable
employer would treat them anyway. For an
employer to dismiss an employee fairly,
he or she must both:
-
have a valid
reason for dismissing the employee,
and
-
act reasonably in
treating that reason as a sufficient
reason for dismissing the employee.
The second of these
conditions does not apply in cases where
the dismissal is unquestionably unfair
(see below).
Has the Employer
Established A Fair Reason For Dismissal?
Legislation lists
five specific types of reason which can
justify dismissal. They are as follows:
Conduct
This is by far the
most common reason for dismissal and the
one which leads to the largest number of
complaints of unfair dismissal. For this
reason this guide is chiefly concerned
with dismissal for disciplinary reasons.
On the specific question of criminal
offences see the paragraph on Dismissal
in Connection with Criminal Offences.
Capability
The employee is
unable satisfactorily to do or does not
have the qualifications for the job. The
question of the employee who becomes
unable to do his or her job because of
illness is discussed further below (see
Dismissal in Connection with Illness).
Redundancy
In general, an
employee can have no grounds for
claiming unfair dismissal if the
dismissal was because of redundancy,
that is because the employer had no work
or insufficient work for the employee to
do. There are, however, some
circumstances in which it is unfair to
make an employee redundant (see
Dismissal on Grounds of Redundancy).
A Statutory
Requirement.
This may prevent the
employment continuing, for example where
a chauffeur has lost his driving licence
and there is no other suitable job
available.
Some other
Substantial Reason.
Experience has shown
that the above reasons are likely to
cover almost every case where dismissal
is necessary. Situations may arise,
however, where an employer has a good
reason for dismissing an employee which
is not one of those listed above. An
example would be the dismissal of an
employee who was taken on as a temporary
replacement for a worker who was
returning after being suspended for
medical reasons (provided, of course,
that it had been clearly explained to
the employee concerned that the job was
only temporary). For such a reason as
this, described in legislation as 'some
other substantial reason', the dismissal
may also be fair.
Automatic Unfair
Reasons for Dismissal.
The dismissal of an
employee will be held to be unfair and
give rise to a claim of automatic Unfair
Dismissal if it is for one of the
following reasons:
-
because the
employee was, or proposed to become,
a member of an independent trade
union; or had taken part or proposed
to take part in the activities of an
independent trade union at an
appropriate time; or was not a
member of a trade union, or had
refused or proposed to refuse to
become or remain a member of a trade
union. Selection for redundancy on
these grounds will also be held to
be unfair. An employee will also be
held to be unfairly dismissed if he
or she is dismissed for refusing to
make a payment (e.g. to a union or
charity) in lieu of union
membership, or for objecting to his
or her employer deducting a sum from
his or her wages or salary to make
such a payment;
-
because the
employee was dismissed or selected
for redundancy on maternity related
grounds;
-
because the
employee was dismissed or selected
for redundancy for taking or seeking
to take paternity leave;
-
because the
employee was dismissed or selected
for redundancy for taking or seeking
to take adoption leave;
-
because the
employee was dismissed or selected
for redundancy for requesting
flexible working arrangement;
-
because the
employee was dismissed or selected
for redundancy for having sought, in
good faith, to assert a statutory
employment protection right;
-
because the
employee was dismissed or selected
for redundancy for taking or
proposing to take certain specified
types of action on health and safety
grounds;
-
because the
employee was dismissed on the
transfer of an undertaking or part
of an undertaking, and the transfer
itself, or a reason connected with
it, is the main reason for the
dismissal, unless it can be
established that the dismissal was
for an economic, technical or
organisational reason entailing
changes in the work force;
-
because, subject
to certain conditions, the employee
was a shop worker or a betting
worker and was dismissed or selected
for redundancy for refusing to work
on Sundays; or he or she was
dismissed or selected for redundancy
for giving, or proposing to give, an
"opting out" notice to his or her
employer;
-
because the
employee was dismissed or selected
for redundancy for performing, or
proposing to perform, any duties
relevant to his or her role as an
employee representative or as a
candidate to be a representative of
this kind or as a participant in the
election of such a representative;
-
because the
employee was dismissed or selected
for redundancy for performing, or
proposing to perform, any duties
relevant to his or her role as an
employee occupational pension scheme
trustee;
-
because the
employee was dismissed or selected
for redundancy for reasons relating
to the national minimum wage;
-
because the
employee was dismissed or selected
for redundancy for reasons relating
to the Working Time Regulations
1998;
-
because the
employee was dismissed or selected
for redundancy for making a
protected disclosure within the
meaning of the Public Interest
Disclosure Act 1998;
-
because the
employee was dismissed or selected
for redundancy for reasons relating
to the Tax Credits Act 2002;
-
because the
employee was dismissed or selected
for redundancy for taking, or
seeking to take, parental leave;
-
because the
employee was dismissed or selected
for redundancy for taking, or
seeking to take, time off for
dependants;
-
because the
employee was dismissed or selected
for redundancy for taking lawfully
organised official industrial action
lasting eight weeks or less (or more
than eight weeks, in certain
circumstances) where the action
started on or after 24 April 2000;
-
because the
employee was dismissed or selected
for redundancy for exercising or
seeking to exercise rights relating
to trade union recognition
procedures;
-
because the
employee was dismissed or selected
for redundancy for exercising or
seeking to exercise the right to be
accompanied at a disciplinary or
grievance hearing, or to accompany a
fellow worker;
-
because the
employee was dismissed or selected
for redundancy for performing or
proposing to perform any duties
relating to an employee's role as a
workforce representative or as a
candidate to be such a
representative for the purposes of
the Transnational Information and
Consultation of Employees
Regulations 1999, or for taking
certain actions in connection with
these regulations, or for proposing
to take or failing to take such
actions;
-
because the
employee was dismissed or selected
for redundancy on grounds related to
the Part-time Workers (Prevention of
Less Favourable Treatment)
Regulations 2000;
-
because the
employee was dismissed or selected
for redundancy on grounds relating
to the Fixed-term Employees
(Prevention of Less Favourable
Treatment) Regulations 2002;
-
because the
employee was dismissed without
statutory dismissal and disciplinary
procedures having been followed;
-
because the
employee was dismissed or selected
for redundancy for reasons relating
to the European Public
Limited-Liability Company
Regulations 2004;
-
because the
employee was dismissed or selected
for redundancy for reasons relating
to the Information and Consultation
of Employees Regulations 2004 for
undertakings with 150 employees
(from 6 April 2007 for undertakings
with 100 employees and from 6 April
2008 for undertakings with 50
employees);
-
because the
employee was dismissed for reasons
relating to jury service.
Has the Employer
Followed A Fair Procedure Prior to
Dismissal?
An employer must act
reasonably in all the circumstances in
treating the reason for dismissing the
employee as a sufficient reason for the
dismissal. Not only must the employer
have a valid reason for the dismissal,
but also he or she must have acted
reasonably in all the circumstances in
dismissing the employee for that
particular reason. The question whether
the employer acted reasonably not only
involves consideration of the way in
which the dismissal was carried out, but
also whether he or she acted reasonably
in relation to the situation leading up
to the decision to dismiss the employee.
For example, if the employee was
dismissed for misconduct or lack of
capability, it is necessary to consider
whether he or she was warned and given a
chance to improve or, if redundancy was
the reason for dismissal, whether the
employee was considered for alternative
work within the same organisation.
In deciding whether the employer acted
reasonably in dismissing the employee
the tribunal will also take account,
amongst other factors, of whether he or
she followed appropriate disciplinary
procedures. As of 1 October 2004,
statutory dismissal and disciplinary
procedures came into force. If those
procedures apply and are not treated as
having been complied with, a dismissal
will be unfair if an employee is
dismissed without the statutory
procedure having been followed.
From the same date, however, if an
employer fails to follow a disciplinary
procedure which goes beyond the
statutory procedure, that failure will
not by itself make the dismissal an
unfair one - provided that properly
following the procedure would have made
no difference to the decision to
dismiss, and that the dismissal was fair
in all other respects.
Written Statement of Reasons for
Dismissal.
The Employment Rights
Act 1996 provides that employees who
have been dismissed may request from
their employer a written statement of
the reasons for their dismissal, which
their employer must provide within 14
days. Employees who are dissatisfied
because they have not received a
statement or believe the statement to be
inaccurate may refer the matter to an
employment tribunal. All employees with
one year's continuous service with their
employer qualify for this right. An
employee who is dismissed at any time
and for any reason while she is pregnant
or during a statutory maternity leave
period will be entitled to receive a
written statement of the reason for her
dismissal, without having to request it
and regardless of her length of service.
There is of course nothing to prevent an
employer from providing written
statements voluntarily for employees who
do not qualify for this right under
employment legislation.
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