What is ‘unfair dismissal’?
Any employee with over 2 years’ service has unfair dismissal rights. That means you can only fairly terminate someone’s employment for one of a few potential fair reasons, namely:
- Capability or qualifications;
- Breach of a statutory restriction; and
- “some other substantial reason”
But for a dismissal to be fair, you cannot just rely on one of these reasons. Both the reason and the procedure you follow must be fair.
The procedure to follow will depend on which of the potential fair reasons you will be relying on, and the circumstances of the issue at hand. It is often a minefield: even identifying which issues to address (and when to address them) can sometimes be difficult.
What is ‘constructive dismissal’?
A constructive dismissal occurs where you do not dismiss the employee, but instead they resign (either with or without notice) and can show that they were entitled to do so by virtue of your conduct towards them. Again, the employee needs at least 2 years’ service to pursue such a claim.
What about people with less than 2 years’ service?
Don’t think that because someone has less than 2 years’ service they cannot pursue a claim against you. There are several automatically unfair reasons for dismissing someone that apply to all employees from day one, which include:
- Them having ‘blown the whistle’;
- Pregnancy, childbirth or taking maternity leave, paternity or parental leave; and
- Taking time off to care for a dependant.
In addition, everyone has the right not to suffer any form of discrimination whilst at work. This applies to not just employees, but your contract workers, agency staff and even job applicants.
How we can help
Dismissing an employee will always entail an element of risk, including risks you may not even be aware of, so you should always take advice before embarking on a process.
We can identify the risks and guide you through each step to help you stay the right side of the law.