There are few things that can be more traumatic and upsetting than being dismissed. It can turn your life upside down and catapult you into financial difficulties. And it can be difficult finding a new job. Here we examine the different circumstances in which you can be dismissed. And the professional advice, support and representation WRS can provide to assist you in challenging an unfair dismissal.
Potential grounds for dismissal
There are several circumstances in which your employer might legitimately be able to dismiss you:
- Gross Misconduct
- Capability – Sickness & Ill Health
- Capability – Performance
- Some Other Substantial Reason (SOSR)
We examine each of these circumstances – and the support WRS can provide – on separate pages of this website
In each case, to fairly terminate your contract of employment, your employer must first follow a formal process that meets the requirements of the ACAS Code of Practice.
You have a legal right to be accompanied at any and all of these Formal Meeting and should make every effort to do so. At the very least this should be by a work colleague. But ideally it should be a representative of a trade union. WRS can make arrangements for you to be accompanied by a representative of a trade union – even if you are not already a trade union member. This will be someone who has considerable knowledge and experience.
To be able to make a claim of unfair dismissal you must have completed at least two years’ continuous service with your employer. This is irrespective of how many hours per week you work.
And to take your case to employment tribunal, you must start legal proceedings within three months of your employer terminating your contract.
Automatically unfair dismissal
There are some specific exceptions to the need to complete two years’ service before you can claim unfair dismissal.
Circumstances where you have a right to claim unfair dismissal from the very first day of your employment – and where your employer is not permitted to argue that there was a fair reason for your dismissal – include:
- Where you have tried to take advantage of your statutory rights. This could be when seeking to work flexibly or part-time. Exercising your rights under the Working Time Regulations. Asking to be paid the National Minimum Wage. Taking Paternity Leave. Etc.
- Your pregnancy or in relation to maternity leave
- You taking legitimate actions in connection to health and safety
- Where you have exercised your rights in relation to pension enrolment, or by being an employee trustee of a pension scheme
- If you are a Whistleblower, whereby you are disclosing wrongdoing under the Public Interest Disclosures Act (PIDA) 1998
If it can be shown your dismissal is because of one of these reasons, an employment tribunal is bound to find that your employer will has dismissed you unfairly.
There is a further category of dismissal where you may have grounds to make a claim against your employer for unfair dismissal: constructive dismissal.
To make such a claim, your employer’s behaviour must be so unacceptable that it amounts to a fundamental (serious) breach of your contract of employment. Here, you are able to resign whilst claiming that you have been unfairly dismissed.
Constructive dismissal is, however, an often heard of but widely misunderstood concept. So it is really important that you fully understand the implications – and receive professional advice – before taking the decision to resign.
Potentially fair dismissal
There are circumstances where your employer may be able to argue that you were fairly dismissed. We deal with each of these scenarios elsewhere on this website. They are:
1. Gross Misconduct
This is where you have allegedly committed a serious breach of your contract of employment. Or it could be where you have repeated less serious Misconduct within a period covered by a Final Written Warning. To be dismissed, you must first have attended a Disciplinary Meeting.
Examples of Gross Misconduct could include:
- Dishonesty or theft
- Serious disregard or breach of your employer’s rules, policies or procedures
- Gross insubordination or negligence
- Breach of confidentiality
- Abusive behaviour
- Bringing your employer’s reputation into disrepute
To prove you are at fault, your employer does not have to meet the same standards of burden of proof that would apply in, say, a civil or criminal court case. Instead, it must be able to show that the decision it reached was reasonable in the circumstances, using what is known as the ‘Burchell Test’.
This requires that, at the time of the dismissal, your employer:
- Had a genuine belief that you are guilty of gross misconduct;
- Had reasonable grounds to substantiate that belief, and;
- At the time it held that belief, it had carried out as much investigation as was reasonable in the circumstances.
To fairly dismiss you, your employer must not only satisfy this reasonableness test. It must also have complied both with its own policies and procedures and also the requirements of the ACAS Code of Practice.
Under certain circumstances, you could be suspended from work on full pay whilst an investigation is conducted.
We recommend you read our 10 tips for disciplinary meetings.
Your employer can legitimately terminate your contract of employment on grounds of redundancy. This is so long as there is a bona fide redundancy situation and the correct process is followed.
This requires that:
- Your role must either no longer be required – or there be a reduced need for your particular type of work. Your dismissal must be “wholly or mainly” because if this;
- You must be consulted on the prospect of your redundancy and permitted the opportunity to respond to your employer’s proposals;
- A fair selection process must have been followed to decide you no longer have a role, and;
- There is no suitable alternative employment into which you could be redeployed.
Where this applies, you will be entitled to at least Statutory Redundancy Pay. Possibly more if you are contractually entitled to an enhanced compensatory payment.
It is always important to establish whether yours genuinely is a redundancy situation.
Some unscrupulous employers can attempt to manufacture redundancy situations to get rid of staff they no longer want to employ for a host of different reasons. If this is the case, you might be able to claim Unfair Dismissal.
A ‘capability dismissal’ can apply if employer can show you are no longer able to fulfil your responsibilities under your contract of employment.
The potential reasons are listed in Section 98 the Employment Rights Act 1996 and can include:
- Ill health, where you have been absent from work for a long period of time. Or if you are persistently off work because of sickness absence. Click here to read more on sickness absence.
- You not having the skills or qualifications required to perform your job responsibilities. This could include circumstances where new qualifications become a legitimate requirement of your role.
- Performance, if you failing to meet the standards and requirements of your role. Click here to read more on your rights when your performance is being criticised.
Where these circumstances apply, to fairly terminate your contract of employment your employer must:
- Convincingly show it has acted reasonably by giving you the time and opportunity to improve
- Evidence the fact it has told you that dismissal could be possible if you don’t improve
- Show it has treated you consistently with your colleagues
- Followed a fair process that is accordance with requirements of its own policy and procedures, and
- Has complied with the requirements of the ACAS Code of Practice.
4. Contravention of a statutory duty or restriction
This is where your employer can show you are prohibited from continuing in your role.
Examples could include if your immigration status means you no longer have a right to work in the UK. If you have a driving-based role but have been disqualified from driving. Or perhaps you work with vulnerable adults or children and have been placed on a DBS Barred List.
Even in these circumstances, your employer should give reasonable consideration to suitable alternatives before dismissing you.
5. Some other substantial reason (SOSR)
This is a less specific category of lawful dismissal. It applies where the reasons do not fit within one of the circumstances detailed above, but where your employer is still able to justify your dismissal on grounds that it acted reasonably in the circumstances.
Typical examples of a SOSR dismissal could include a personality clash with other employees, if it is untenable for you to continue working together. If your fixed-term contract is not renewed because you have been covering for maternity leave. Or an irretrievable breakdown in trust and confidence between you and your employer.
Here, the onus is on your employer to prove that the SOSR is not masquerading for another reason that has not been made. It must also follow a fair, reasonable and proper process that is consistent with ACAS Guidelines.
Whatever the circumstances of your dismissal, your employer must be able to persuasively show that it has acted reasonably. If not, you will have grounds for making a claim of unfair dismissal at employment tribunal.
Right to be accompanied
Whatever the reasons, to dismiss you fairly your employer must comply with the requirements of the ACAS Code of Practice.
WRS is able to provide you with trade union representation, even if you have not previously been a union member.