A dismissal is the action of an employer terminating an employee’s contract. This is essentially the same thing as being sacked/fired. Before an employer dismisses someone, they should ensure that the reason is fair and valid. They must also follow a full procedure following ACAS’s Code of Practice on disciplinary and grievance procedures. This includes informing the employee of the reasons for the dismissal such as; why they have been dismissed, when their contract will end, their notice period and their right to appeal the decision. It is beneficial to have this done in writing.
The 5 reasons for proper dismissal:
According to the relevant law, the Employment Rights Act 1996, there are 5 possible reasons for dismissing someone fairly. The reasons are, but not limited to:
Other relevant causes for employee dismissal could include things such as:
However, if an employer does not abide by ACAS’s Code of Practice on disciplinary and grievance procedures or is in line with the standard set for proper dismissals, an employee can claim an unfair dismissal with an employment tribunal.
If an employee feels that their job termination was unfair, then they may be able to contest it under the heading of it being an unfair dismissal. A “constructive dismissal” is one type of this. This is relevant where an employee feels forced to leave their job due to a particularly serious action taken by their employer. This may give the employee eligible grounds to claim constructive dismissal. ‘Constructive unfair dismissal’ is the correct legal phrase.
Some things are deemed as “automatically unfair” if they are the predominant reason for dismissing an employee. These include:
Health and Safety Issues:
Employees have the right not to suffer a detriment; or to be dismissed or treated unfairly, in a situation where they have taken action over a health and safety issue. For example, in a case concerning unsafe working conditions.
Taking action over health and safety issues can include; expressing a valid concern to an employer about health and safety, refusing to do one’s duties when they fear that they or others are at risk of danger, and carrying out appropriate activities in the capacity of a spokesperson for occupational health and safety, such as urging co-workers not to use a piece of equipment until adequate safety precautions are in place.
Another instance in which employees cannot be dismissed is for their participation in industrial action if; it involves a dispute between them and their employer regarding an affair about terms and conditions for example. Also, if the employer has received from the employee a legal notice of the industrial action at least 7 days before it begins and if the employee takes part in the industrial action at any time within the 12 weeks from when it began. Moreover, if the industrial action is called as a result of a properly organised ballot. Dismissal for any of these reasons will be held as unfair dismissal.
A further note to add is that employees may be fired for engaging in industrial action after 12 weeks if the company has made efforts to resolve the conflict. For instance, the employer might have asked ACAS to assist in coming up with a solution.
Claiming an unfair dismissal
Claims for an unfair dismissal entail the employee putting a claim through an employment tribunal. If an employee has “employee” employment status and has worked for their company for two years, they often have the ability to file an unjust dismissal claim through an employment tribunal. However, if the employee has been dismissed for an automatically unfair reason as mentioned earlier, then it is not necessary that the employee has worked for the employer for 2 years.
Another instance where the employee is not required to have worked with the employer for 2 years is with a discrimination claim; this could also be claimed in excess of an unfair dismissal. Moreover, a person has adequate grounds to file an unfair dismissal claim if they believe that they were fired unfairly due to a “protected characteristic,” such as age, disability, or race.
How to make a claim
A claim for unfair dismissal must be made by the deadline of 1 day before the 3 months of the date of their employment termination. This date is subject to the last day of the employee’s notice period or if the employer failed to provide notice, the day that the employee was fired.
Before filing a claim, the employee must notify ACAS. The option of “early conciliation,” a free service in which ACAS speaks with both the employee and employer, will be presented to both parties by ACAS. This acts as a form of mediation as it offers the parties the option to reach an understanding and agreement without having to use the tribunal.
Another form of dismissal is “wrongful dismissal” and this is when the employee’s contract is breached by the employer. This is usually concerning notice pay or notice. Another example of wrongful dismissal is when the employer does not grant someone the full notice period that they are entitled to. Likewise, it is irrelevant how long a worker has been with their employer if they want to file a claim for wrongful dismissal.