Dismissing employees

Sacking, laying off, discharge and perhaps most familiarly, “you’re fired!” are all terms for being dismissed from your job. For the purposes of employment law, retirement and redundancy also count as dismissals and it is important that employers know how to conduct dismissals correctly and for the right reasons if they are to avoid claims in an employment tribunal.

 

For the purpose of this post, I will concentrate on the following types of dismissal claims:

  • Fair or unfair
  • constructive
  • wrongful

Fair and unfair dismissal

A dismissal is fair or unfair depending on your reason for dismissal and whether you act reasonably during the dismissal process.

Fair reason examples:

  • conduct/misconduct
  • capability/performance
  • redundancy
  • breach of statutory restriction
  • some other substantial reason

Unfair reason examples:

  • dismissals relating to maternity and paternity
  • refusal to work over 48 hours a week on average
  • insisting on paying national minimum wage
  • dismissals related to union membership to name a few

Constructive dismissal

Constructive dismissal occurs where an employee resigns because you have substantially breached their employment contract, for example:

  • cutting wages without agreement
  • unlawfully demoting them
  • allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination
  • unfairly increasing their workload
  • changing the location of their workplace without contractual authority
  • making them work in dangerous conditions
  • telling an employee to resign

The breach of contract can result from either a single serious event or the last in a series of workplace related events.

Wrongful dismissal

Wrongful dismissal is where a contractual term is broken in the dismissal process, for example:

  • dismissing someone without giving them proper notice
  • termination of a fixed term contract before it is due to expire at the end of the term
  • dismissal in breach of contractual disciplinary procedures
  • dismissal in breach of contractual redundancy procedures

 

If you have any questions please feel free to get in touch today via edward@hrhubplus.com or 0333 577 0788

Edward Obi is a Chartered Member of the Chartered Institute of Personnel and Development (CIPD) and a Director at HR Hub Plus Limited based in Aberdeen.

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