DISMISSING STAFF: Employers should work within dismissal rules when firing their staff members. UK employment legislation recognises these 4 types of staff discharge:
- Constructive dismissal
- Fair dismissal
- Unfair dismissal
- Wrongful dismissal
These are the most common reasons why an employer might dismiss staff from the workforce. Sacking an employee usually includes a notice period.
In most cases, an employer will give the notice as outlined in an employment contract. It could be the statutory minimum notice period instead, if this is longer. But, ending a contract of employment means employees have certain rights to ensure it is fair.
Constructive Dismissal
In some cases an employee might resign under constructive dismissal. It happens most if an employer breaches the employment contract. The breach can be a single serious event or it can be a series of less serious events.
Some reasons why an employee might claim constructive dismissal include:
- Allowing them to suffer workplace bullying and harassment, or not preventing discrimination in the workplace.
- Changing their workplace location (employer relocation) at short notice.
- Cutting their wages without their agreement or demoting them unlawfully.
- Unfairly increasing their workload or forcing them to work in dangerous conditions.
Note: Constructive dismissals may not be unfair. But it could be difficult to show how a breach of contract was fair. A constructive dismissal can also lead to an employee claim for wrongful dismissal.
Dismissals for Conduct or Performance
As a rule, employers should treat performance and conduct as two separate issues. That means managers need to differentiate between dismissals for capability and conduct.
Fair and Unfair Dismissal Situations
There are two main reasons why a dismissal is either a fair dismissal or an unfair dismissal. It depends most on:
- The reason for ending an employee’s contract (e.g. redundancy).
- The way employers proceed during the sacking procedures.
Note: A sacking will be an automatic unfair dismissal if the main reason is one of the reasons the law says will be ‘automatically’ unfair.
Wrongful Dismissal
What is the meaning of wrongful dismissals? It occurs most when an employer breaks the terms of an employee’s contract somewhere in the process. An example could be firing someone but failing to give them proper notice.
There are several reasons why an employee might take their employer to a tribunal. The most common reasons would be for an unfair, constructive, or wrongful discharge.
Note: There are significant differences between a wrongful dismissal and unfair dismissals.
How to Dismiss Staff Fairly
Employers must act in a reasonable and fair manner during the dismissal procedure. They must also use sensitive conduct towards all fired employees.
Use the procedures set out in the Acas code of practice to dismiss staff fairly. Northern Ireland uses the Labour Relations Agency code of practice.
Note: Check the ‘Acas code of practice for disciplinary and grievance procedures’ for guidance. Failing to follow the code can result in an employment or industrial tribunal. In this case you may need to pay compensation if you lose your case.