Having to fire an employee is never an enjoyable experience. Not only do you have to deal with the inherent conflict involved, you also need to ensure that you approach it in the right way legally.
When you dismiss an employee by terminating their contract, there are legal stipulations that must be adhered to in order to ensure that their dismissal is fair. A dismissal can be considered fair, unfair, constructive, or wrongful, depending upon the exact circumstances surrounding it.
Fair
In order to be considered fair, a dismissal must be undertaken for a valid reason. Valid reasons include the capability and conduct of the employee, so employees who are unable or unwilling to perform their duties properly or professionally can be dismissed fairly.
A dismissal is also considered fair if it is undertaken for the purposes of redundancy, meaning that the business is making necessary cuts to its staffing numbers. In cases of redundancy, employees are entitled to redundancy pay, and to time off to find another job or to arrange training in preparation for a next job.
Finally, should circumstances change in a way that means an employee can no longer perform their role properly, such as losing a driving license for example, they can be fairly dismissed.
Unfair
An employee can claim that their dismissal was unfair if they believe that you gave them a false reasoning for the dismissal, if the reason that you gave, or the reason that they suspect was the real one, is unfair, or they believe that you acted unreasonably. Acting unreasonably would include things like dismissing them instantly for a minor infraction.
Even if you have acted reasonably, a dismissal will be considered unfair if it is related to any of the following areas;
- Pregnancy or maternity
- Paternity leave, including birth and adoption.
- Time off for emergencies involving families or dependents.
- Acting as the representative of an employee or of a trade union.
- Being either a fixed-term or a part time employee.
- Disputes over pay and working hours. This includes regulations such as the Working Time Regulations, compulsory annual leave, and the National Minimum Wage.
- The employee has acted as a whistleblower.
It is also considered to automatically be an unfair dismissal if someone is dismissed because they partake in lawful industrial action. Unless an employee is dismissed for a serious lapse in behaviour, they cannot be fairly dismissed in a 12-week period, starting from the first day of industrial action. An employee also cannot be dismissed if lawful industrial action lasts longer than 12 weeks and you have not undertaken reasonable steps to reach a resolution with them. It is for a tribunal to decide if the steps taken to resolve a dispute are reasonable.
In the case of workers who are disabled or become disabled, you can fairly dismiss them if accommodating them would require you to take unreasonable steps or incur unaffordable costs. However, if you can easily and reasonably make the necessary adjustments, you must do so.
Penalties for Unfair Dismissal
Employees who are dismissed will have the option to challenge the decision at a tribunal. If the tribunal rules in their favour, you may have to reinstate them in their previous position, or in some cases ‘re-engage’ them, meaning you give them another more suitable role within your business. Tribunals can also offer compensation to employees in certain circumstances. If you do not follow any orders given to you by the tribunal, you may have to pay additional compensation.
If you wish to dismiss an employee, but you are unsure of your legal standing, you should seek legal advice. There are many firms that offer Employment Law services. You may want to consider services that you can use every month to keep on top of any issues that arise. There are different plans that can be found such as the Enterprise Service Plan by Harper James Solicitors in the UK, who can advise you on how to proceed and ensure that their expert advice is at a fraction of the usual costs.
Constructive Dismissal
Constructive dismissal is when an employee resigns on the basis that you have breached your end of their employment contract. Circumstances under which an employee might claim constructive dismissal include having their wages cut without prior agreement, an unwarranted demotion, failure to act upon reports of harassment or discrimination, arbitrarily or unfairly increasing their workload, or making them work in unsafe or unsanitary conditions.
Constructive dismissals are not automatically unfair, but if you have breached your contract, you will find it difficult to argue that it was fair at a tribunal.
Wrongful Dismissal
A dismissal is considered to be wrongful if, in the process of the dismissal, you breach the terms of your contract. The most common example of this is dismissing someone without giving them the requisite notice beforehand.
If an employee feels that they have been dismissed unfairly, they have the option of taking you to an employment or industrial tribunal. It is these tribunals that will ultimately judge whether the employee was dismissed wrongly or unfairly. Whenever you are considering dismissing an employee, it is essential that you make sure to follow the correct procedures.
