If an employer wants to dismiss an employee, it has to be aware that if there is no fair reason and the employer does not follow a fair and reasonable process, that it is very likely that an employee may claim unfair dismissal.
The employee must be given a period of notice unless they are being summarily dismissed (dismissed for gross misconduct).
If an employee was employed on or after 6 April 2012, they need to have been employed for at least two years to be eligible to claim unfair dismissal. Prior to this date the employee only needed one years continuous service.
Notice to be given
Levels of notice are governed by the Employment Rights Act 1996 and depend on the length of time the employee has worked for the company.
- Just 24 hours notice if less than four weeks continuous employment
- One week’s notice if four weeks to two years continuous employment
- A week’s notice for each year of continuous employment if between two years and 12 years continuous employment
- 12 week’s notice for over 12 years continuous employment
Longer notice periods will only apply if the individual employee’s contract provides for it. The only exceptions to the necessity to offer a period of notice are when the employee is found guilty of serious or gross misconduct. In these cases the employer may be entitled to dismiss the worker immediately without any period of notice. The employer will still have to pay the employee for any accrued but untaken holiday pay.
Payment during notice period
The worker is entitled to normal rates of pay during this time as well as any benefits usually enjoyed such as company car etc.
The circumstances in which a dismissal may be deemed to be fair:
- Some other substantial reason
Fair in all the circumstances
If the employer is satisfied that they have a fair reason to dismiss someone, then they still need to follow a fair procedure. The employer may have a disciplinary procedure but if they do not then they should follow the ACAS code on disciplinary and grievance procedures. This advises that the employer should:
- Investigate the problem (this may include suspending the employee and carrying out interviews)
- Invite the employee to a disciplinary hearing;
- Inform the employee of the allegations against them and the possible sanction;
- Inform the employee of their right to bring either a trade union representative or a colleague to the meeting;
- Advise the employee of their right to appeal
Automatic unfair dismissals
It is automatically unfair to dismiss an employee for one of these reasons:
- Being a member of a trade union or taking part in trade union activities
- Being pregnant or taking maternity leave
- Taking action on health and safety grounds
- Refusing to work on Sundays
- Reasons connected to transfer of an undertaking from one employer to another
- Acting or being prepared to act as a representative for other employees in a redundancy exercise or business transfer