The dismissal of an employee may be wrongful or unfair. It may also be justified, but this is of no weight where the procedure for dismissal is unfair. Where the procedure for dismissal is unfair an employee can bring a claim for unfair dismissal against their employer.
Are you an individual who has been unfairly dismissed? Are you a business who needs to brush up on the ACAS principles for procedural fairness? Or do you simply just want to learn more about your rights as an employee? Then look no further as this article will cover this and more by addressing the following issues:
What is a dismissal?
What are the fair and unfair reasons for dismissal?
How do you achieve procedural fairness when dismissing an employee?
What is a dismissal?
A dismissal is the termination of an employee by the employer. This may be due to a range of different factors including the employee’s behaviour, the employer’s conduct, a fixed term contract ending, redundancy and many more.
A contract of employment will generally set out the express terms of the employment contract. However, employers and employees are also bound by an implied term which provides that they will not act in a manner “ which is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between them”. Any breach of this duty by an employer can entitle an employee to treat themselves as having been dismissed and they can bring a constructive unfair dismissal claim in the Employment Tribunal.
Constructive dismissal can therefore arise where an employee resigns as a result of the employer creating a hostile and difficult work environment; this could include bullying, sexual harassment, discrimination and more. Although the employee is leaving, it is seen as involuntary as it has arisen as a result of the employer’s behaviour. This type of dismissal is at the heart of the implied duty of mutual trust and confidence.
Further, a summary dismissal is where an employee acts with gross misconduct. This behaviour must be so grossly negligent or incompetent that the employer dismisses them without notice, and without pay in lieu. An example of this could be if a pilot crashes their aircraft because he/she was drunk- this is classed as unduly negligent. Where an employee’s behaviour is potentially dangerous to others, this type of dismissal would seem justified. However, proper practice requires that the employee should be suspended, pending investigation into the conduct, with full pay.
What are the fair and unfair reasons for dismissal?
Fair reasons for dismissal:
Conduct- where an employee’s conduct falls below what is expected of them.
Capability- where an employee is not capable or is no longer capable at carrying out their job i.e., they lied about their qualifications or their health has deteriorated to such an extent that they can no longer carry out their job even with help from the employer.
Illegality- their contract has become illegal by way of external circumstances, i.e., a taxi driver losing his driving license.
Redundancy- where an employee is fairly chosen for redundancy.
SOSR- Where, for some other substantial reason, the dismissal is justified. This is a very broad category and covers a range of different situations which may be deemed fair by a tribunal.
Automatically unfair reason
Being pregnant or being on maternity leave
Where an employee has made an allegation of discrimination and is dismissed because of this
Wanting to take family leave i.e., for adoption or childcare.
Being a Trade Union member or representative
Asking for a legal right i.e., asking to be paid the minimum wage.
Doing jury service
Being involved in whistleblowing
Taking action over a health and safety issue i.e., unsafe working environment
And many more...
How do you achieve procedural fairness when dismissing an employee?
Even where an employer’s reason for dismissal is fair, the procedure must also be fair. Failure to follow a fair procedure could result in an employee winning their claim for unfair dismissal.
ACAS Procedure Code
The ACAS code is well-known to most employers. Whilst the code is discretionary as some employers have their own disciplinary and grievance code, the code sets out the bare minimum requirements that employers should follow.
For instance, where an employee is dismissed for one of the five fair reasons above, the employer must also ensure that they:
Inform the employee of the problem through a formal meeting.
Establish the facts of the case and deal with the issues at hand promptly by carrying out the necessary investigations.
Allow the employee to be accompanied to any meetings by a representative or work colleague.
Decide on the appropriate action and give the employee the opportunity to put their case in response before any decision is made.
Inform the employee of their right to appeal the decision by the employer after the employee has been notified of the decision.
The decision must be given to the employee in writing.
Failure to follow the code requirements could result in the employment tribunal awarding the wronged employee a 25% uplift in damages at the tribunal. It is always advisable for an employer to follow the ACAS code as it protects an employer from being penalised too harshly by the tribunal and it is a safety net for employees. Employers and employees should be aware of the ACAS code and its importance.
How Can Pure Business Law Help?
We are specialist Employment Law Solicitors based in Bedford and London and operate nationally.
If you are a business or an individual who wants to find out more about unfair dismissal and the ACAS code, please contact us and book a consultation with one of our expert Employment Law Solicitors.
Our highly experienced Business and Contract solicitors can advise you on all Employment matters, including the ACAS code when dismissing an employee.
If you would like to discuss anything raised in this article, please contact us, and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England and Wales.