Employment
and related matters
Dismissal
Procedures
There
have been many changes to employment law and regulations in
the last few years. A key area is the freedom or lack of freedom
to dismiss an employee.
An employee’s employment can be terminated at any time
but unless the dismissal is fair the employer may be found
guilty of unfair dismissal by an Employment Tribunal.
We set out below the main principles involved concerning the
dismissal of employees. We have written this factsheet in
an accessible and understandable way but some of the issues
may be very complicated.
Professional advice should be sought before any action is
taken.
The
Right to Dismiss Employees
Reasons
for a fair dismissal would include the following matters:
- the
person does not have the capability or qualification for
the job (this requires the employer to go through consultation
and/or disciplinary processes)
- the
employee behaves in an inappropriate manner (the company/firm’s
policies should refer to what would be unreasonable behaviour
and the business must go through disciplinary procedures)
- redundancy,
providing there is a genuine business case for making (a)
position(s) redundant with no suitable alternative work,
there has been adequate consultation and there is no discrimination
in who is selected
- the
dismissal is the effect of a legal process such as a driver
who loses his right to drive (however, the employer is expected
to explore other possibilities such as looking for alternative
work before dismissing the employee)
- some
other substantial reason.
Claims
for Unfair Dismissal
After
one year’s service employees can make a claim to an Employment
Tribunal for unfair dismissal within three months of the date
of the dismissal and if an employee can prove that he/she
has been pressured to resign by the employer he/she has the
same right to claim unfair dismissal or constructive dismissal.
If the employee wins his/her case the Tribunal can choose
one of three remedies which are:
- re-instatement
which means getting back the old job on the old terms and
conditions
- re-engagement
which would mean a different job with the same employer
- compensation
where the amount can be anything from a relatively small
sum to an unlimited amount if the dismissal was due to some
form of discrimination.
If
the dismissal is demonstrated as being due to any of the following
it will be deemed to be unfair regardless of the length of
service:
- discrimination
for sex, race or disability
- pregnancy,
childbirth or maternity leave
- refusing
to opt out of the Working Time Regulations
- disclosing
certain kinds of wrong doing in the workplace.
Statutory
Disciplinary Procedures
On
many occasions a dismissal which seems quite justified to
the employer will be found to have been unfair if correct
disciplinary proceedings were not followed. As a result of
the Employment Act 2002 from October 2004 all employers must
have a disciplinary procedure in place which satisfies the
requirements of the Dispute Resolution Regulations 2004. Whether
you employ just one or hundreds of employees ignorance will
be no excuse if you fall foul of this important area of new
legislation.
There is a basic three-step Dismissal and disciplinary procedure
(DDP) which must be used before an employer dismisses or imposes
a significant sanction on an employee such as demotion, loss
of seniority or loss of pay.
It applies to all types of dismissal, including conduct, capability,
redundancy, retirement, expiry of a fixed term contract, unsuccessful
probation etc.
Standard procedure
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Step 1
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Employers must set out in writing the reasons why dismissal
or disciplinary actions against the employee are being
considered. A copy of this must be sent to the employee
who must be invited to attend a meeting to discuss the
matter, with the right to be accompanied
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Step 2
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A meeting must take place
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Step 3
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An appeal procedure must be established
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There may be some very limited cases where despite the fact
that an employer has dismissed an employee immediately without
a meeting, an Employment Tribunal will very exceptionally find
the dismissal to be fair. This is not explained in the regulations
but may apply in cases of serious misconduct leading to dismissal
without notice. What this means in practice awaits the test
of case law.
Modified procedure
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Step 1
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Employers firstly set out in writing the grounds for
action that has led to the dismissal, the reasons for
thinking at the time that the employee was guilty of
the alleged misconduct and the employee's right
of appeal against the dismissal
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Step 2
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If the employee wishes to appeal against the decision,
the employer must invite them to attend a meeting, with
the right to be accompanied, following which the employer
must inform the employee of their final decision. Where
practicable, the appeal meeting should be conducted
by a more senior or independent person not involved
in the earlier decision to dismiss.
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The only occasions where employers are not required to follow
the DDP are as follows:
- they
reasonably believe that doing so would result in a significant
threat to themselves, any other person, or their or any
other person's property
- they
have been subjected to harassment and reasonably believe
that doing so would result in further harassment
- because
it is not practicable within a reasonable period
- they
dismiss a group of employees but offer to re-engage them
on or before termination of their employment
- there
are collective redundancies and they consult with employee
representatives
- the
business closes down suddenly because of an unforeseen event
- the
employee is no longer able to work because they are in breach
of legal requirements eg to hold a valid work permit.
How
We Can Help
We
will be more than happy to provide you with assistance or
any additional information required.
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For information of users: This material is published
for the information of clients. It provides only an overview
of the regulations in force at the date of publication, and
no action should be taken without consulting the detailed
legislation or seeking professional advice. Therefore no responsibility
for loss occasioned by any person acting or refraining from
action as a result of the material can be accepted by the
authors or the firm.
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