Dismissal from work

26th April 2018

A dismissal is when your employer brings your employment contract to an end, thereby terminating your job with them. If you have two years’ service with your employer you are protected from being unfairly dismissed.

Dismissal

There are also a limited number of situations where dismissal will be unfair even if you do not have two years’ service, e.g. if you are dismissed for blowing the whistle. You should seek advice if you have been dismissed, and are unsure whether or not you might be entitled to bring a claim.

If you have two years service and are dismissed, your employer must follow an appropriate dismissal procedure. Many different actions by your employer count as dismissal, some of which are more straightforward than others. Things your employer may do that count as dismissal include:

  • Ending your employment (with or without notice);
  • Not renewing a fixed-term contract after it has ended;
  • Making you redundant (including voluntary redundancy);
  • Making it impossible for you to continue working, leading you to resign or making you feel as though you have to resign (this is known as constructive dismissal);
  • Laying you off or putting you on short-time working despite this not being permitted by your contract;
  • Not letting you come back to work after maternity leave;
  • Prohibiting you from coming back to work after industrial action (a strike) or a lockout.

The above list is not exhaustive. In most cases, your employer should give you a notice period for being dismissed. If this is not stated in your contract of employment, then the law sets out the statutory minimum notice periods your employer must apply, depending on how long you have worked for them.

in most cases, your employer should give you a notice period for being dismissed

The minimum legal notice periods are as follows:

Length of time worked for the employer The amount of notice they must give
Less than a month No notice period
One month or more One week’s notice
Two years or more Two weeks’ notice
Every additional year beyond two years One additional week’s notice, to a max 12 weeks

Notwithstanding the above, an employer could dismiss you without being legally required to give you notice on grounds of gross misconduct.

Gross misconduct is when you commit a serious offence such as physical violence against a co-worker or theft of company property. In a gross misconduct situation, your employer may dismiss you from work immediately and does not have to allow you to work, or pay you for, any notice period. However, they must still follow a fair process in reaching this decision.

Reasons for dismissal

There are a number of reasons which your employer may give to justify a dismissal. Potentially fair reasons include:

You are not able to perform your role properly

For example, if you are performing poorly and you have shown no signs of improving following training and assistance.

You are suffering from an illness which means you cannot do your job

Your employer must first consider the medical position, whether there are any reasonable changes they could make to accommodate your needs, give you a reasonable opportunity to demonstrate you can return to work or do your job and/or consider whether there are any alternative vacancies if not.

If you become disabled due to an illness or accident, your employer can only dismiss you if it is genuinely no longer possible for you to do your job as a result even without the above interventions – otherwise it may count as discrimination.

Your job role is no longer required or your employer has to reduce their workforce

This is known as redundancy (see below for more details). If you are selected for redundancy, your employer must have fair reasons for selecting you.

You have committed an act of gross misconduct

In cases like this, you will face summary dismissal – that is, dismissal without a notice period.

Your employer is no longer able to employ you without breaching the law

For example, if you are working in a sensitive position and receive a criminal record.

It is impossible to carry on employing you

For example, if the factory in which you work burns down.

Unfair dismissal

If you have been dismissed but your employer did not have a fair reason to do so, or they did not follow the proper dismissal procedure, you might have a claim for unfair dismissal.

For more information on this topic, including how to recognise unfair dismissal and what to do if you have been dismissed, view our unfair dismissal post.

There are very short limitation periods to bring employment tribunal claims.

There are very short limitation periods to bring employment tribunal claims – three months less one day from the date of dismissal. You will be required to engage in mandatory ACAS Early Conciliation as a pre-requisite to bringing a tribunal claim.

Constructive dismissal

If you have resigned from your job but felt as though you were forced to do so due to circumstances in the workplace, you may have been constructively dismissed. This is when your employer makes your working conditions so intolerable that you feel you have no choice but to quit.

In general, you need two years’ service to bring this claim, but there are a limited number of exceptions to this position, so you should seek advice.

Wrongful dismissal

Another form of dismissal is wrongful dismissal, in which your employer breached your contract due to failing to give you proper notice.

You do not need a minimum length of service with your employer to bring this type of claim.

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