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Back to basics: #2 Employees rights when being dismissed

Posted: 25th November 2019

Let’s get ‘Back to Basics’ and strip back Employment Law in a series of short but informative blogs.  In this blog, I will cover the rights of employees when they are being dismissed. Sorry Lord Sugar, you can’t just say “you’re fired” to all your employees.

An employee gains a right to a fair dismissal if they have two years’ continuous service* with the same employer. There are exceptions to this rule. One of the exceptions is or has been unlawful discrimination**. Another is where the dismissal is because the employee attempted to enforce a “statutory right”***.

If an employee is unfairly dismissed, they can claim up to 52 weeks’ wages in an employment tribunal.

What is a fair dismissal? Ultimately, that’s for the employment tribunal decide however employers can take steps to make sure they don’t fall foul of the law.

Step 1: Dismiss for a potentially fair reason which are:

  1. Capability and qualifications – For example, a lorry driver losing his driving licence.
  2. Conduct – For example, a cashier stealing from the till.
    Redundancy – For example, a role that is no longer required within the business.
  3. Statutory restriction – For example, expiry of a visa.
  4. Some other substantial reason – This is a catch all but reasons include expiry of fixed term contracts.

Step 2: Adopt a proper procedure relating to the potentially fair reason for dismissal
The procedure depends on the potentially fair reason. For example, the ACAS Code of Practice*** should be followed when dismissing for misconduct. (Failure to do so will result in a 25% uplift in any compensation in a successful unfair dismissal claim. I will procedure for all the potentially fair reasons in greater detail in future blogs.)

Step 3: Employment
The Employment Tribunal will consider whether the employer acted reasonably in treating the “potentially fair reason” as a sufficient reason for dismissal. In other words, have you been reasonable? It doesn’t stop there. The Employment Tribunal will also take into account the “size and administrative resources”**** of the employer. What this means is that, as a very general rule, the bigger the employer the less patience an Employment Tribunal will have when it claims it did not have enough managers to deal with the investigation and to deal with the disciplinary hearing.

*           Continuous service is the day which the employee starts work. It is a technical term which covers the situation when a week worked does not count as a week of continuous employment. It also covers when breaks in employment count as a break in continuous service even when there is no contract of employment in place. Continuous employment can also be preserved on a change of employer in certain situations.
**          There are nine protected characteristics – f – and it is unlawful to discriminate against job applicants, workers and employees on the grounds of any one or more of these protected characteristics.
***        e.g. the employee has blown the whistle, raised concerns over national minimum wage, or has been dismissed because of their membership to a trade union (the list goes on)
****       What this means is that the size of the organisation is important in assessing the kind of disciplinary procedure and any alternative to dismissal available to the employer. For example, a girls boarding school was criticised by the Employment Tribunal for not providing a mechanism of appeal beyond the board of governors who dismissed the employee. In contrast, it was fair to dismiss an employee who was a maintenance fitter and lost his driving licence in a firm with only three employees.

For help and advice on dismissal or any employment law issues please speak to a member of the Blackadders Employment Team.

Duncan Milne, Solicitor
Employment Law
Blackadders LLP


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