DISMISSAL : FAIR OR UNFAIR?
An employer is able to dismiss an employee at any time. However, in normal circumstances, the employee must be given notice either in accordance with his contract of employment or in accordance with the statutory minimum periods of notice that apply.
In addition, the employer must behave reasonably in the manner he dismisses the employee otherwise he/she will succeed in a claim of unfair dismissal provided he/she has at least one year’s service with the employer.
In certain circumstances, instant or summary dismissal is sometimes appropriate i.e.: dismissal without notice for gross misconduct .
A DISMISSAL WILL BE FAIR IF THE FOLLOWING CONDITIONS ARE MET :-
Firstly, the main reason for the dismissal must be either:-
The employee is unable or unqualified to do the job possibly because of medical reasons.
The employee’s conduct is unacceptable
A legal requirement prevents the employee from doing the job
Some other substantial reason
Secondly, the employer must act reasonably in deciding to dismiss rather than taking a lesser form of disciplinary action. A proper investigation must take place with an opportunity for the employee to put his case forward and to take a companion such as a work colleague or Trade Union representative, if appropriate.
FROM 6 APRIL 2009 – NEW DISMISSAL PROCEDURES APPLY
From 6th April 2009, the somewhat notorious statutory disciplinary and dismissal procedures brought into force by the Employment Act 2002 are rescinded and effectively everyone reverts back to the previous position regarding dismissal procedures.
The new ACAS Code will be given centre stage from 6th April and employers will be expected to adhere to it when dismissing their employees.
Importantly, the Code does not apply to redundancy dismissals although employers should continue to properly consult their workforce and arrange formal meetings prior to effecting redundancies.
The ACAS Code can be viewed here
CERTAIN TYPES OF DISMISSAL WILL BE REGARDED AS AUTOMATICALLY UNFAIR :-
Dismissal for being the member of a trade union
Dismissal for being pregnant or taking maternity leave
Dismissal related to raising concerns over health and safety
Seeking to assert an employment right (e.g. right to minimum wage)
Dismissal related to the transfer of a business or undertaking
Dismissal for disclosing details in the public interest
ACT QUICKLY – ACT NOW
Employees have three months from the date of dismissal to make a claim of unfair dismissal to the Employment Tribunals.