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Making a Constructive Dismissal
Compensation for Unfair Dismissal
Employers, Employees and Maternity Leave
Absent From Work and Natural Disasters
Flexible Working in Employment
Employers With Employees Working From Home
Social Workers Licensing Requirements
Unpaid Internships and Employment Law
Hotel Cleaners Paid By Rooms Cleaned
Medical Evidence in Disciplinaries
Employee Giving Company Bad Name
Employer Access to Medical Records
Employment Checks for Minor Criminal Convictions
Legal Issues Working With Children and Vulnerable Adults
Child Abuse Overseas UK Employment Law
British Workers Rights Over Foreigners
Blacklisting Trade Union Members
Employment Agency Withholding Pay
Employment Agency Withholding Pay
Building Work Health and Safety
Driving for a Living and the Law
There may be many reasons why an employer may feel that they have to dismiss an employee and it may be a very problematic time for the employer.
When dismissing an employer the employer must adhere to certain procedures to ensure that the dismissal is not wrongful or unfair.
Accordingly if an employer wishes to dismiss an employee if they want to do this correct then there are a number of issues which they should take into consideration.
An employee will be able to bring about a claim for wrongful or unfair dismissal if the following has occurred:
That the employee has been dismissed for a reason other than one which is allowed by law
That the employee has been dismissed without the correct procedure being followed
That the employee has been dismissed without the proper amount of notice being given
If an employer wrongfully or unfairly dismisses an employee then they will leave themselves open for legal challenge by that employee. Furthermore where the claim by that employee is successful then can in certain cases be able to claim substantial amounts of damages.
Even in cases where the claim is successful the costs of defending the claim may be significant especially in terms of management time. Accordingly as an employer it is imperative that the proper procedures are followed when dismissing an employee.
The first thing for an employer to note is that the decision to dismiss an employee must be fair.
A decision to dismiss an employee will be regarded as fair if:
It relates to the employee’s conduct
It relates to the employee’s capability or qualifications
It is because of redundancy
It is because the employee has reached normal retirement age
Where continuing to employ that person would be illegal – for example due to their immigration status
The dismissal is for some other substantial reasons – i.e. a fair reason that does not fall within the above categories
If an employer dismisses an employee for any other reason this will be regarded as an unfair dismissal.
Generally speaking only employees who have been employed for one year can bring a claim for unfair dismissal. However, certain dismissals will be regarded as automatically unfair regardless of this requirement.
An employer must follow a fair procedure when dismissing an employee even if the dismissal is for a fair reason.
In cases of poor performance or misconduct an employer should ensure that they comply with the ACAS Code of Practice. If an employer fails to do this then this could result in a finding of unfair dismissal.
When an employer is dismissing an employee on grounds of retirement that employer is required to implement a planned retirement procedure as the employee approaches retirement age. In this situation the employee must be given 6 months written notice and have their request not to retire considered by the employer.
For all other types of general dismissal including redundancy an employer will still be required to follow a fair procedure whereby the employee is given sufficient information about the reasons for their potential dismissal and the opportunity to respond at a hearing or a meeting before a final decision is reached.
In most cases it is important to ensure that an employee who has been dismissed is given a full right of appeal.
An employer will be required to show that they acted reasonably in dismissing an employee for that reason. This will often depend upon the particular circumstances of the case whereby an employer will be required to show that certain factors were taken into consideration in dismissing the employee.
When an employer dismisses an employee they are required to give them adequate notice or payment in lieu of this notice. This does not apply to cases of gross misconduct.
If the notice period is not specified in the employment contract then the employer will be required to give reasonable notice to the employee.
Employees with continuous employment of at least one month but less than two years are entitled to at least one weeks’ notice from the employer.
Employees with continuous employment of two years are more are entitled to one weeks’ notice for each complete year up to a maximum of 12 weeks’ notice after 12 years.
As an employer it is often important to tackle issues as soon as they arise through an informal meeting with the employee. If this does not resolve the issue then you may have to use more formal procedures.
Often when employing new employees an employer may be able to use a probationary period to provide the employee with any doubts which they may have over their performance.
Employers should be careful when corresponding with an employee by taking copies of all correspondence but also in not using any threatening or aggressive language.
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