Unless an employee is contracted to work for only a specific fixed period or his contract provides for circumstances that automatically end it, his employment can usually only be terminated by either him or his employer giving a period of notice. If the employer ends the contract this is a dismissal. However a dismissal will also occur if an employer simply fails to renew a contract for a fixed period when that period comes to an end.
There can also be a constructive dismissal if an employee resigns in circumstances where he is entitled to treat the contract as brought to an end by a fundamental breach of contract on the part of the employer. A common example of this kind of dismissal is where the trust and confidence between employer and employee is destroyed. Abusive or discriminatory behaviour by an employer towards an employee, a serious unilateral variation of contractual terms by the employer or conduct intended to provoke the employee’s resignation may well cause a constructive dismissal.
Generally an employee who has completed more than two continuous year’s employment is protected from unfair dismissal.
In order for a dismissal to be fair the reason for the dismissal must be one of these potentially fair reasons:
In all cases the employer’s decision to dismiss must satisfy a test of fairness. If the employer has not followed a fair procedure in making the decision to dismiss an employee the dismissal will usually be ruled to be unfair.
A Tribunal will look at all the circumstances of a dismissal in order to decide whether the decision to dismiss was a reasonable response to the circumstances and the facts known to the employer at the time.
If the claimant is found to be unfairly dismissed the Tribunal will award compensation made up of two components.
The basic award is calculated in the same way as a statutory redundancy payment multiplying a week’s pay by the number of years worked adjusted according to the claimant’s age.
Over and above the basic award the Tribunal may award compensation to meet the claimant’s financial losses caused by the dismissal.
The maximum award of compensation is fixed by law. The current limit is £78,335 (from April 2015). From 2013 a cap was imposed to limit compensation awards to a year’s pay or the statutory limit, whichever is the lower.
As well as awarding compensation a Tribunal may also order the employer to give the employee his job back or re-engage him in a similar job. The number of such orders made is very small.
Tribunals have the power to adjust awards. An employer who fails to comply with a reinstatement or re-engagement order may be ordered to pay additional compensation. An employee who is found to have contributed to his dismissal may have his compensation reduced.
Tribunals also have powers to order one party or the other to pay the other’s costs.
A dismissal will be automatically unfair if the reason or main reason for dismissal is one of those reasons that the law says will be automatically unfair (and in most cases the employee requires no qualifying period of employment to make a Tribunal claim).
The automatically unfair reasons for dismissal are:
All of the above are automatically unfair dismissals. In most of these cases an employee does not need to have a period of qualifying continuous employment EXCEPT in the following:
(But they will give rise to an automatic finding of unfair dismissal if they are shown to be the reason for dismissal of someone qualified to claim).
This is an entirely different concept to unfair dismissal. Every employee is entitled to reasonable notice of the termination of their employment unless employed on a fixed term contract. This is a common law concept independent of the statutory rights not to be unfairly dismissed. Most contracts of employment specify the notice either party must give the other. In the absence of such agreement the Employment Rights Act 1996 provides that where an employee has been employed for more than a month, the employer must give him at least the statutory minimum period of notice which is one week. After two completed years of continuous employment, the notice entitlement rises to one week for every completed year of employment up to a maximum of 12 weeks notice.
An employee only has to give his employer a week’s notice, after a month of employment, irrespective of how long he is employed.
An employee dismissed without notice may be able to sue his former employer for wrongful dismissal and claim damages equivalent to what he has lost as a result.
However, an employer may dismiss without notice where the employee is guilty of gross misconduct, although what exactly constitutes ‘gross misconduct’ is not clearly defined, so it is a good idea for employers to seek legal advice in such situations.
Retirement cannot be a potentially fair reason for dismissal unless it can be objectively justified.
The guidance on this site is intended mainly for employers and business owners, because Lawrite, which publishes this site, is a provider of HR and legal support services to employers.
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