Businesses sometimes need to dismiss staff. However, there are only five reasons for a fair dismissal. These are:
- Poor conduct;
- Lack of capability and qualifications;
- Redundancy;
- A statutory duty or restriction that forbids employment from continuing;
- Some other substantial reason that explains the dismissal.
Unlike normal unfair dismissal, there is no two-year qualifying period before a claim can be brought. That means if someone is sacked on their first day due to an unfair reason, then they are entitled to sue. The automatically unfair reasons are:
- Pregnancy, including all reasons relating to maternity;
- Family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants;
- Acting as an employee representative;
- Acting as a trade union representative;
- Acting as an occupational pension scheme trustee;
- Joining or not joining a trade union;
- Being a part-time or fixed-term employee;
- Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage;
- Whistleblowing.
Additionally, discrimination is automatically unfair. Therefore, if an employer treats an employee in an unfair manner because of a protected characteristic, then they will be entitled to sue. The protected characteristics are;
- Sex;
- Sexual orientation;
- Age;
- Gender reassignment;
- Disability;
- Race;
- Religion and belief;
- Marriage and civil partnership;
- Pregnancy and maternity.
In order to fire someone, an employer must follow a fair dismissal procedure. This usually means:
- Having an informal chat with a recommendation of improvement;
- A verbal written warning;
- A first written warning;
- A final written warning;
- Dismissal.
In cases of gross misconduct, an employer may go straight to dismissal. All policies and procedures should be available to employees and written notes of all disciplinary proceedings should be kept. Failure to follow all of this could be unfair dismissal.
If it can be established an employee has been sacked in a case of automatically unfair dismissal, then there is no defence. An employer will automatically lose the case. Losing means the employer is liable to pay compensation, which usually one year’s pay, up to a maximum of £78,962. There is also a basic award of up to £14,370. If the dismissal was for discriminatory reasons or for raising a health and safety complaint, then the maximum compensation will be unlimited.
If a case of misconduct or performance arises, an employer should follow the procedures set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. If a matter does go to an employment tribunal, then it will consider if it has been followed when assessing if an employer has acted reasonably.
