Employment Lawyers in London
How can employees be dismissed lawfully?
Generally, employers must ensure that they:
- Have a fair reason for dismissal, follow a fair procedure and act fairly and reasonably (so as to avoid unfair dismissal).
- Comply with the terms of the employment contract, particularly as regards the employee’s notice period (so as to avoid wrongful dismissal).
- Do not discriminate unlawfully.
Employees are entitled in some cases to written reasons for dismissal
There must be a fair reason for the dismissal
There are five potentially fair reasons for dismissal:
- This could be a single act of misconduct or a series of less serious acts
- Capability or qualifications. This includes poor performance, ill-health and formal qualifications
- This includes workplace closure, business closure, or reduced need for employees
- Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)
- “Some other substantial reason” (SOSR). This is a catch-all category of potentially fair reasons that do not fall under the other categories. For example, this category may include dismissals for failure to agree to changes to terms and conditions, pressure from third parties such as clients, and business reorganisations falling short of a genuine redundancy situation.
Qualifying periods and automatically unfair reasons
Generally, employees must have completed two years’ continuous employment before they can bring a claim for unfair dismissal.
Dismissal for certain reasons is deemed automatically unfair, in most such cases, employees do not need a qualifying period of employment. These include dismissals for reasons connected to pregnancy or childbirth, whistleblowing or asserting a statutory right
The employer must follow a fair procedure
Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss.
In cases of misconduct or poor performance, the employer should comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. Failure to do so may lead to a finding of unfair dismissal and the tribunal may increase compensation by up to 25% if the failure to comply with the Acas Code was unreasonable. The employee also has a statutory right to be accompanied by a colleague or a trade union representative at any disciplinary hearings.
For all other types of dismissal, including redundancy, there is still a requirement to follow a fair procedure. It is important to give an employee sufficient information about the reasons for their possible dismissal, a reasonable period of time to consider that information, and the opportunity to respond at a hearing or meeting, before reaching a final decision. It is also advisable to give a right of appeal in most cases.
The employer must dismiss “reasonably”
Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal. This will involve taking into consideration different factors, depending on the reason for dismissal. For example, where an employee is being dismissed because they are not capable of doing the job, an employer will usually have to give the employee a chance to improve.
All the circumstances, including the size and resources of the employer, will be relevant when determining whether it acted reasonably.
Employers must not discriminate
An employer must not base a dismissal on a reason that is directly or indirectly discriminatory based on a protected characteristic and must not discriminate against or harass an employee during the dismissal process. This would include dismissing an employee because of sex, disability, race, religion, sexual orientation, gender reassignment or being married or in a civil partnership, or for an unjustified age-related reason.
Employers must also avoid dismissing someone because they have complained about discrimination or harassment, or supported another employee in their complaint, as this would amount to victimisation.
Written reasons for dismissal
Employees who have achieved the qualifying period of service for unfair dismissal are entitled, on request, to a written statement setting out the reasons for their dismissal. The reasons must be provided within 14 days of the request, and may be used in evidence in any subsequent tribunal proceedings.
Employees who are dismissed while pregnant or during statutory maternity or adoption leave have the right to be given written reasons for dismissal without requesting it, regardless of their length of service.
Acas Code of Practice
Failing to follow the Acas Code of Practice in cases of misconduct or poor performance can result in an uplift of up to 25% on any compensation arising out of the dismissal.
If you believe you have been unfairly dismissed or simply want an opinion on your case, please contact us for a no obligation consultation on 0203 669 2216 or email firstname.lastname@example.org