Ending Employment – Dismissal
Dismissal is when the employment contract is terminated. This could be if:
- The employer terminates the contract;
- A fixed term contract ends; or
- The employee is constructively dismissed.
Terminating the Employment Contract
Terminating someone’s contract should be a last resort but sometimes it is necessary.
There are 5 potentially fair reasons for dismissal
- A reason related to the capability or qualifications of the employee;
- A reason related to the conduct of the employee;
- That the employee was redundant;
- That the employee could not continue due to a statutory ban; or
- Some other substantial reason of a kind such as to justify the dismissal (a catch-all for reasons other than the four above). See SOSR below.
To resist an unfair dismissal claim, the employer will need to be able to show that they terminated the employment for one of those 5 reasons. If they manage to do that, they also will need to show that they acted reasonably in dismissing for that reason and that there was procedural fairness too (see disciplinary procedure).
A Fixed Term Contract (FTC) Ends
An employer doesn’t need to give notice if a contract ends when it was originally intended to end (when the contract was originally agreed, the employer could have given a specific end date or they might have said the contract would end when something specific happened or ended). If the contract is to end earlier than planned, this will be a termination of the contract – see above.
The Employee is Constructively Dismissed
These cases can be very complex since, to be considered to be constructive dismissal there must have been a fundamental breach of the employee’s contract and it can be difficult to judge what exactly that means. Also, the employee must have resigned in response to that breach, and they must have resigned promptly, both of which may be ‘grey areas’. ForHR can help you understand the risk of your situation being seen as constructive dismissal and help you decide the best course of action.
ForHR can help you with dismissals
There are a lot of pitfalls with handling dismissals but we have a huge amount of experience of handling them well. We can help by:
- Advising on which procedure to follow
- Advising on handling dismissal when someone has less than 2 years’ service
- advising on the process (providing scripts if required)
- advising on possible suspension
- advising on or carrying out investigations
- attending hearings to advise and/or take notes
- advising on the correct notice period
- chairing hearings (not normally recommended)
- providing template letters or writing letters for you
- reviewing outcomes and making recommendations
- advising on settlement agreements
- training or coaching managers on disciplinary management and dismissal; on constructive dismissal; or on redundancy.
If you are worried about managing one of these situations, get in touch. ForHR will help.
Redundancy is when an employer has a reduced need for a particular role or skill in a location. This could perhaps be due to a change in what the business does, a reduction in work a site closure or a restructure.
For a dismissal due to redundancy to be fair there must be a genuine redundancy situation and there are various procedural steps that must be followed, such as consulting with staff and their representatives.
ForHR will make sure you follow the correct procedures so as not to end up paying protective awards or losing at Tribunal. We can also help you to help your employees by communicating well, providing help with finding other jobs either internally or externally and making sure all their questions are answered.
This is where an employee is prevented from doing their job by a provision in law. For example:
- Where a lorry driver has been banned from driving; or
- Where a doctor has been struck off; or
- Where an employee does not have the right to work in the UK.
These situations are not straightforward, there may be other steps that need taking before dismissal would be fair, and employers would be advised to take advice before dismissing for this reason.
Some Other Substantial Reason (SOSR)
This arises when you feel that you have reasonable grounds for dismissing an employee, but your reasons don’t neatly fit in to any of the other grounds for a fair dismissal. SOSR is more difficult to clearly define. It is probably easiest to outline some of the circumstances that could be considered as SOSR:
- Business Reorganisations;
- A dismissal due to a personality clash between employees that makes it impossible for them to work together;
- Third party pressure to dismiss;
- The dismissal of an employee where there are concerns relating to the safeguarding of children or vulnerable adults, but where the employer does not have grounds for a misconduct dismissal;
- The non-renewal of the fixed-term contract;
- Some TUPE situations;
- Some retirement situations.
Dismissing someone for “some other substantial reason” must be fair. and should not be thought of as a loophole that allows you to dismiss someone without substantial, fair and reasonable grounds.
SOSR is complex, so you should seek professional advice before dismissing someone for “some other substantial reason”.
ForHR can help you with SOSR.
Constructive Dismissal / Constructive Unfair Dismissal
If the employer treats the employee in a way that fundamentally breaches their employment contract, i.e. does something that is a significant breach, going to the heart of the employment contract, the employee is entitled to resign in response to that breach and then claim constructive (unfair) dismissal.
Note: an employment advisor will not normally advise an employee to take this course of action, since constructive dismissal claims can be difficult to win and it is usually safer for the employee to hold on to their job. However, some employees do take this step when they feel they have no alternative.