Dismissal

For a dismissal to be fair, you have to show that the employee was dismissed for one of the following permitted reasons:

• capability
• conduct
• redundancy
• statutory illegality

It’s important we can show that one of the permitted reasons was the true reason for the dismissal.

Capability – Capability falls into three categories

1. Poor performance, where the employee’s ineptitude is such that he or she cannot perform the duties required or lack the requisite ability or skills
2. Capability (sickness) illness, where the employee’s poor health makes it impossible for him or her to perform all or part of his or her duties.
3. Not qualified to undertake their duties – e.g., Loss of driving licence

Where you wish to dismiss for capability, you must be able to demonstrate that you have followed the Group’s procedures otherwise it could be deemed unfair.

Conduct 

Conduct issues range from failure to follow management instructions, company instructions or damaging the employment relationship. You can dismiss in misconduct cases even if the reason does not amount to gross misconduct but are obliged to give notice and follow a procedure, including warnings, which is fair overall.

Where there has been gross misconduct no notice needs to be given but a fair procedure must still be followed.

Note; care should be taken to follow the Group’s disciplinary procedure and the Acas Code of Practice on Disciplinary and Grievance Procedures prior to dismissing for misconduct.

The general procedure in misconduct cases will involve carrying out a reasonable investigation, holding a disciplinary hearing and offering a right of appeal.

The employee should be given a full and fair opportunity to consider all the evidence and state his or her case and have the right to representation.

The following do not amount to dismissal:

• termination by mutual agreement
• termination resulting from the employment contract becoming impossible to perform or becoming radically different from what was originally contemplated by the parties (known as frustration)
• resignation by the employee other than as set out above

Unfair Dismissal 

To avoid a claim for unfair dismissal you must have:

• a potentially fair reason to dismiss
• acted reasonably in treating this reason as sufficient to justify dismissal
• followed a fair procedure

In order for an employee to bring an unfair dismissal claim they must show that:

• he or she was employed for at least two years (except where the employee has been dismissed for an automatically unfair reason that does not require a qualifying period)
• lodged the claim within three calendar months of the effective date of termination

To establish constructive dismissal, the employee must show that the organisation has committed a serious breach of contract. Examples of conduct which can give rise to constructive dismissal include changes to salary, and, most commonly, breach of the implied term of mutual trust and confidence.

The burden of proof is on the employee, who will need to establish that:

• there was a serious and repudiatory breach of contract by the employer;
• the resignation was a result of the breach; and
• the employee did not waive the breach, e.g. by continuing to work normally

A constructive dismissal will usually (but not always) amount to an unfair dismissal.

You should be aware that an attempt to persuade an employee to resign could lead to the employee being able to establish constructive dismissal.

An employee can bring a claim for wrongful dismissal where they are dismissed in breach of terms of their contract. Typically dismissing an employee with inadequate notice will leave the employer liable to a claim for wrongful dismissal.

Notice Periods

The business is required to give statutory minimum notice as follows:

• one week where the period of continuous employment is one month or more but less than two years
• one week for each year of continuous employment, up to a maximum of 12 weeks, where the period of continuous employment is two years or more

Employees’ statutory minimum notice is one week where the period of continuous employment is one month or more.

A PILON clause allows the business to terminate the contract immediately and pay the employee what he or she would have earned during the notice period, as a lump sum.

Where an employer dismisses without notice (or with inadequate notice) and makes a PILON without the benefit of a contractual right to do so, this will generally amount to a breach of contract.

The consequences of making a payment in lieu of notice will depend on whether or not it is paid in accordance with the contract.

Did you know tribunals have the power to order reinstatement or re-engagement following a successful claim for unfair dismissal!

Statutory illegality occurs if the employee could not continue working in the position without contravening a duty or restriction. For example, a HGV driver who loses his or her driving licence and so cannot continue to drive. However, in such a case, an employer might be required to consider whether there is any reasonable alternative non-driving work that could be offered for the duration of the driving ban.

Some other substantial reason (SOSR) is a catch-all category which provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons.

The following could amount to SOSR dismissals:

• the dismissal of a person employed as a temporary replacement for another employee taking maternity leave when the original employee returns to work
• the dismissal of an employee who has been imprisoned
• dismissal resulting from the employer losing trust and confidence in the employee because of something he or she has done outside the workplace

If we can show that the dismissal was for one of the fair reasons, whether or not it was fair or unfair depends on whether the business acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee.

Tribunals will take into consideration

• whether the ACAS code was followed
• the length of the employee’s employment
• the reasonableness and thoroughness of any investigation
• the extent to which the employee was warned and given the opportunity to improve
• the extent to which the employee was given the opportunity to give his or her version of events before a decision to dismiss was taken
• consistency of treatment with other employees
• whether the employee was considered for other roles within the organisation.

Our actions will be judged on the basis of information that was available to it at the time.

Discrimination and dismissal

You must be aware any dismissal tainted by discrimination can result in a separate claim of discrimination. This could be in addition to a claim for unfair dismissal and/or wrongful dismissal.

Settlement agreements (previously known as compromise agreements) are binding arrangements between an employer and employee (and other parties to a statutory claim) setting out the terms on which an employee will settle an existing claim or agree not to initiate a case against the employer.

The employee contracts out of their statutory employment rights by signing a settlement agreement.

All settlement agreements must be made in conjunction with HR who will support you through the process.