Introduction
Dismissal Index
External Links
Before considering taking any termination/ dismissal action organisations should review their proposed course of action against the Procedure Check page.
What is dismissal?
By dismissal we mean the termination of the employment contract by the employer. In common law such termination is no different to the termination of any other commercial contract. The terms of the contract (whether explicit or implied) lay down the process of termination and if any compensation is due. Normally the contract sets down a minimum notice period that must be given and any other restrictions that will apply.
However in the case of employment dismissal the basic law of contract has been extensively modified by statute. For employees with service longer than 12 months it is no longer legal for the employer to terminate the contract merely by giving notice. In those circumstance the employer can only legally terminate the contract in tightly defined circumstances:
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If the employer has followed a fair and reasonable procedure and found the employment contract has fundamentally broken down on grounds of conduct or capability.
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If the job filled by the employee is redundant.
In the case of employees with less than 12 months service the employer can legally terminate the contract without reason but extreme care must be taken not to discriminate against employees. If discrimination occurs the 12 month service requirement does not apply. Apart from discrimination, employers should beware there are a number of other situations where the 12 month limit may not apply (e.g. strikers, maternity, health and safety representatives).
How is reasonableness judged?
The essence of the test is whether the dismissal was an action within the "band of reasonable responses" for the employer to take in the circumstances.
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Did the employer have reasonable grounds for believing that the employee had done the act concerned?
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Had the employer carried out a reasonable investigation?
Had the employer followed its own procedure. -
Did the employee know the allegations against him/her and was the employee allowed to put their side of the story.
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Was the employee allowed the right to be accompanied at the disciplinary hearing, click here for more information on the right to be accompanied.
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In capability cases, was the employee warned and given a reasonable time to improve, with appropriate training, if necessary.
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In the case of ill health cases, was the employee consulted and his or her doctor asked for a view as to when the employee could be expected to return and his/her ability to do the job on return.
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Additionally the employment tribunal will take due regard to such things as the employee's length of service, the size of the employer, consistency of treatment.
What is constructive dismissal?
This occurs when an employee resigns their contract but shows that the employer had committed a substantial breach of contract prior to their resignation. Often such a breach arises from the behaviour of the employer towards their employee.
The pages indexed opposite deal with the most common dismissal situations facing employers.
Before
considering taking any action organisations should review their proposed course
of action against the Procedure Check page.