Employee Dismissal

A dismissal occurs when an employer terminates an employee’s contract of employment (although see constructive dismissal below).

Employees have two potential claims following a dismissal. These include:

1. Wrongful dismissal

Where an employee is dismissed in breach of contract and includes:

  • Actual dismissals where the employer, in dismissing an employee, breached the employee’s contract and causes the employee loss e.g. did not give notice on dismissal.
  • Constructive dismissal where an employee resigns in response to an employer’s repudiatory breach e.g. significantly changing an employee’s contract terms without consent.

Employees may have a potential claim for breach of contract in the employment tribunal or a civil court for a wrongful dismissal.

2. Unfair dismissal

A dismissal can be unfair in substance or because of the procedure followed. The right not to be unfairly dismissed only applies to employees with over 2 years’ service (there are limited exceptions).

There are 5 potentially fair reasons for dismissal:

  1. Conduct – when an employee does something unacceptable or has poor behaviour.
  2. Capability – when the employee is not able to do the job (e.g. illness) or where they do not have the right qualifications.
  3. Redundancy – a closure of the business, the closure of the workplace, or a reduction in the need for employees.
  4. Legal reason – when the employee cannot do their job legally, for example an HGV driver who's banned from driving.
  5. 'Some other substantial reason' – used where the employer’s reason does not fall into one of the above. The reason must be substantial (not wholly frivolous or insignificant).

Employers must ensure they use a fair and reasonable process to decide whether to dismiss an employee, even if the reason for dismissing them is valid. Employers should have policies and procedures in place and ensure they follow these before deciding whether to dismiss an employee.  

Other potential claims:

Discrimination – Where a person is treated less favourably (dismissed) because of a protected characteristic (see our guide on discrimination). This applies to employees and workers and does not require a minimum length of service.

Right not to suffer a detriment – for example, where an employee is dismissed for making a protected disclosure (whistleblowing). In this instance, the dismissal represents the detriment.

Sills & Betteridge LLP have a team of experienced employment solicitors who can guide you through the relevant process to ensure dismissals are dealt with fairly and do not result in potential liability for your business.

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