Dealing with workplace dismissals

In today’s precarious, evolving business environment, workplace conflicts and disputes are becoming ever more common. Stress, pressure to increase lacklustre productivity levels, and a squeeze on personal and company finances alike can quickly multiply, resulting in cultures of fear and suspicion.

Following the Supreme Court’s judgement to overturn the government’s tribunal fee system, and abolishing all fees charged to employees in July 2017, the UK saw a 64 percent rise in overall employment tribunals brought forward by disgruntled workers.

According to Personnel Today, unfair dismissal continues to be one of the most common types of employment tribunal claim pursued by UK employees – a Personnel Today study found that during the year to June 2017, 12,038 cases for unfair dismissal were brought before a tribunal in the UK.

The UK also ranks as the third worst country for employee protection, according to the Organisation for Economic Co-operation and Development (OECD)’s survey of 30 countries and 10 emerging economies.

Following the abolition of tribunal fees, it has never been more important for employers to understand and correctly interpret their internal policies relating to dismissal, and to ensure that they are executed as fairly and consistently as possible.

What does the term ‘dismissal’ actually mean?

Essentially, the term dismissal, also known as being ‘fired’ or ‘let go,’ refers to the involuntary termination of employment of employee, against their will or without a mutual agreement between the employer and employee in question.

Dismissal can occur when:

• An employer decides to terminate an employment contract, with or without giving notice
• A fixed term contract ends, and the employer decides not to renew it
• An employee decides to leave their place of work, with or without giving notice, in circumstances that are entirely reasonable due to the misconduct of their employer

What is classed as fair dismissal?

To be classed as a ‘fair’ dismissal within the UK, as an employer you must be able to prove that the dismissal is due to one of five specific reasons. You must all be able to show that you have acted fairly and reasonably by deciding to carry out the dismissal. This typically involves following a fair procedure, and can be far more complex than it actually sounds – any resulting employment tribunal will exercise wide discretion on what can be considered ‘unfair.’

Even if an employer is found guilty of serious misconduct, this could still not be enough to ensure that a dismissal is fair. You must still carry out a full and thorough investigation into the offence, and make sure that all mitigating circumstances have been fully considered.

In order to be potentially fair, a dismissal must normally be categorised as one of five reasons:

• Lack of capability to execute duties, or lack of perceived qualifications
• Poor conduct (E.g violence, criminal activity or gross misconduct)
• Illegal activities, or contravention of a statutory duty (E.g. Someone has been arrested or lost their right to work in the UK)
• Some other substantial reason (This isn’t set out by law, but you must demonstrate a good reason for the dismissal)
• Unavoidable redundancy

What is classed as unfair dismissal?

Employees within the UK retain the right not to be unfairly dismissed. This is enshrined within the Employment Rights Act 1996.

You must keep in mind that only people with ‘employee’ status have the right to claim unfair dismissal, but this does include part-time and fixed-term employees within your workplace. Unfortunately, there are some categories of worker who not have the right to challenge a dismissal that they believe may be for an unfair reason. These include:

• The self-employed
• An agency worker, or any person who has ‘worker’ status
• A police officer, or person within the armed forces
• A registered dock worker
• Those working overseas, or for a foreign worker

You must ensure that all workers within your organisation are clear on their employment status – it is against the law to imply that a person is self-employed or a worker in order to not provide an employee with their statutory legal rights within the workplace.

If an employee does decide to challenge a dismissal decision, they can usually do this for one of two main reasons:

1. They do not believe that they have provided them with a good reason for their dismissal
2. They do not believe that you have correctly followed your business’s formal disciplinary or dismissal procedures

If they believe that they have not been dismissed for a valid reason, they can usually measure this against the following common circumstances for unfair dismissals:

• They are pregnant or on maternity leave, or have applied for maternity, paternity or adoption leave
• They have asked for flexible working
• You have asked them to give up their right to working time rights – e.g. rest breaks
• They have joined a trade union
• They have resigned and given the correct notice
• They required time off for jury service
• They have been forced to retire
• They have exposed wrongdoing in the workplace (E.g. whistleblowing)
• They are a particular race or ethnicity
• They are married or in a civil partnership
• They are disabled
• They identify as LGBT
• They belong to a particular religion
• They are older or younger than other employees within your workplace

What is constructive dismissal?

Constructive dismissal occurs when an employee is forced to resign against their will due to the conduct of their employer. However, the employee must be able to prove that the reasons for their resign were extremely serious. Reasons that could be construed as serious could include:

• Letting an employee be harassed or bullied at work
• Not being paid correctly
• Being suddenly demoted for no reason
• Being forced to accept unreasonable changes to how they work (E.g. Having to work on night shifts, made to work in dangerous conditions)
• Not correctly following formal grievance or dismissal procedures

If an employee decides to claim for constructive dismissal, they must be able to show that at least one serious incident, or a series of more minor yet linked incidents, have taken place.

What is wrongful dismissal?

A wrongful dismissal normally occurs when an employee can prove that their employer has broken the terms of their employment contract during the process for dismissal, e.g. dismissing an employee without providing proper notice.

Wrongful dismissals can be extremely for employees and employers alike, and sadly often end in employment tribunals. Ensuring that you correctly follow legal dismissal procedures, as well as those laid out within your own employment contracts and employee handbooks, is therefore vitally important if you wish to avoid the cost, time and negativity associated with proceedings.

Is there a procedure for instigating dismissals?

Dismissals are very serious matters that need careful handling by employers. Before taking any action, you should ensure that you first gather all the facts of the circumstances surrounding the decision to dismiss.

In the first instance, you should consider whether dismissal really is the only option open to you. For example, if the issue relates to poor performance or timekeeping, have you considered whether the issue is entirely within the employee’s control? It could be a result of inadequate leadership, defective work systems, or poor management – see if there any issues that could be resolved and in turn could improve the employee’s conduct in the first instance.

If you still feel that the situation has not improved, then should proceed to disciplinary action, which ultimately could result in dismissal. This stage will involve calling formal meetings, investigating issues, and informing the employee of all stages of progress by written communication.

If you still feel, following a meeting, that dismissal is the only option, then you must follow the following rules:

• Ensure that you provide written confirmation of the dismissal
• Provide the employee with an opportunity to appeal
• Ensure that you provide at least a basic reference in order for the employee to find a new role (You are not allowed to supply a bad reference)

There are certain circumstances where normal procedures may not be applicable when considering dismissing an employee. If you have an employee that can fit into any of the categories below, then you may need to adapt your procedures accordingly:

Someone is on maternity leave

Many people believe that they cannot dismiss an employee whilst they are on maternity leave, but you can – it just cannot be the reason for the dismissal. A person on maternity reserves the right to return to their job unless they have been made redundant and there is no alternative work, they have been away from work for more than six months and it is not possible for them to return to their old role, or they have breached contract of employment (such as working for another company whilst on leave.

An employee is still on probation

Anyone on probation within their workplace does not have any specific legal rights. You can dismiss someone on probation with a minimum one week’s notice, and you only have to provide a longer period of notice if it stipulates it within your standard contract of employment.

The employee in question is entitled to ask for an extension on their probation period, or to be given extra training in order to improve in their workplace duties. However, you do not have to agree.

You have an employee on a fixed term contract

An employee on a fixed-term contract usually finish their job on a set date, or when a certain workplace project is finished.

However, you can dismiss an employee before the end of their fixed-term contract if the contract stipulates that you can. You will usually need to provide them with at least one week’s notice, unless they have worked for you for more than two years, or if their contract says that they are entitled to more notice.

You can also dismiss an employee at the end of the fixed-term contract, as long as you ensure it is done fairly and legally.