A Guide to The Different Types of Dismissal

A dismissal is a significant event in the employment relationship, affecting both employers and employees. Understanding the various types is crucial for handling these situations fairly and legally. In this guide, we’ll provide an overview to help employers and employees navigate dismissal.

What is Dismissal?

Dismissal is the term used to describe when an employer ends an employee’s contract of employment, in other words, fired or let go. This can happen for a variety of reasons, however, when dismissing an employee, it’s important that employers follow a fair and reasonable procedure. This involves having a valid reason, adhering to the Acas Code of Practice on disciplinary and grievance procedures, and ensuring the decision is balanced, consistent, and fair.

If an employee claims unfair dismissal and the case goes to an employment tribunal, the procedure followed will be a key factor in the tribunal’s assessment.

Types of Dismissal

Conduct

If an employee has been dismissed due to conduct, it usually means they have displayed unacceptable behaviour and broken one or more of the terms of their employment. This could include actions such as:

  • Theft
  • Fraud
  • Violence
  • Continually missing work
  • Poor discipline
  • Drug or alcohol abuse
  • Dishonesty

Employers should always follow a fair disciplinary process by providing the employee with a chance to explain their actions before making a final decision.

Capability

Being dismissed due to a capability issue is when an employee cannot do their job. This could be due to an illness that they have no control over or they simply aren’t performing to the required standard. For example:

  • They haven’t kept up with technological changes to the job
  • They can’t get along with colleagues
  • They have a long-term or persistent illness that makes their role impossible

Before dismissal, employers should make sure you are given the appropriate and adequate training to be able to do the job. If the employee is performing poorly, a warning should be given for a chance of improvement before permanent action is taken.

Redundancy

Redundancy is when an employee’s job role is no longer needed. Reasons why a position could become redundant include:

  • New technology that has made a job unnecessary
  • The job role no longer exists
  • There is a need to cut costs
  • The business is closing down or moving

There are several ways in which an employer must ensure the redundant employee is treated fairly, and the employee may be eligible for:

  • Redundancy pay
  • A notice period
  • A consultation with the employer
  • The option to move to a different job
  • Time off to find a new job

Although redundancy can be a difficult process, an employer should always use a fair and objective way of selecting you for redundancy, meaning you can’t be selected because of age, gender, pregnancy, or disabilities. If you are made redundant because of one of these reasons, you could claim for unfair dismissal.

Legal Reasons

An employee can be dismissed if they cannot legally do their job, and continued employment would break the law. For example, an employee could be dismissed for the following reasons:

  • A driver who has lost their licence due to traffic offences
  • An employee working under a visa that has expired
  • An employee who was responsible for breaches of data protection laws
  • An employee in a profession that requires specific certifications or licences who has lost their credentials

When a legal issue arises, there must be initial investigations and communications with the employer before implementing the dismissal.

Other Substantial Reasons

This type of dismissal encompasses a range of scenarios that do not fit into any other categories, but are substantial enough to justify a dismissal. Reasons could include:

  • An employee could refuse to accept a company reorganisation that changes their employment terms
  • An employee is sent to prison
  • Irreparable breakdowns in the working relationship
  • There is a conflict of interest to keep employing the individual
  • Expiration of a fixed-term contract
  • There is a reputational risk in continuing to employ an individual

If an employee has been dismissed for some other substantial reason, they must act reasonably and follow an appropriate procedure before going through with the dismissal process. Employers can also consider alternatives to dismissal, such as moving the employee to a different location or department.

Constructive Dismissal

A constructive dismissal claim can be made when an employee resigns from their role due to their employer’s behaviour or something their employer has done. This could include:

  • Reduction in salary without a good reason
  • Being bullied or discriminated against
  • Not looking into a grievance made
  • Making substantial changes to the employee’s duties or place of work without agreement
  • Workload increases unreasonably
  • Unsafe or unhealthy work conditions that aren’t remedied

If an employee finds themselves in this situation, they can first of all talk to their employer or raise a grievance. If you feel your only option is to resign, you can seek legal advice first. When resigning, an employee should clearly state their reasons for leaving. You can then make a constructive dismissal claim if you have been an employee for your employer for 2 or more years.

Unfair Dismissal

Unfair dismissal occurs when an employer doesn’t have a fair or valid reason for dismissal or fails to follow the proper procedure. An employee can only claim unfair dismissal if they’ve worked for their employer for 2 or more years, unless they are claiming for an automatically unfair reason. Reasons for unfair dismissal may include:

  • Race, gender, sexual orientation, or any other protected characteristics
  • Pregnancy
  • Assertion of employment rights
  • Belonging to a trade union
  • Asking for flexible working

Employees who believe they have been unfairly dismissed can seek the advice of employment law solicitors or take their case to an employment tribunal.

If you’re looking for more information on dismissal or you feel you’ve been unfairly dismissed, we can help. We have a team of employment law experts who can help you navigate through this stressful time. Get in touch with us now.

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