Dismissal and Redundancy

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Dismissal and Redundancy

There may be good and potentially fair reasons for your employer to dismiss you. These could be for matters relating to your conduct such as theft, continued absence without explanation, violent behaviour or being under the influence of drink or drugs while at work. In each case, despite suspension often being the first action of an employer, an investigation and disciplinary process should still be followed. Without this an employee may be considered to have been unfairly dismissed.

Another potentially fair reason could be ill health. The employer would however need to seek medical advice before dismissing and ensure that there is no discrimination against the employee based on disability. Lack of qualifications is another potentially fair reason; the employer would need to demonstrate that the job requires such qualifications and that without them it would be very difficult or indeed illegal to undertake the work.

An employer can also dismiss an employee for poor performance or capability. However, again there needs to be a fair and reasonable process of warning that person that their performance is not satisfactory. This should ordinarily include a meeting to discuss how the individual can improve their performance and any help or training which may be appropriate.

All these potentially fair reasons must be supported by evidence of not only the failing or problem but also that a fair and reasonable procedure has been followed before a dismissal takes place. Even then the decision to dismiss must be seen as a proportionate response with other alternative methods of discipline - for example verbal, written and final warnings - having been considered in appropriate circumstances.

Your employment contract is likely to set out under what circumstances you can be dismissed and should state the period of notice to which you are entitled. Where your contract does not mention notice then you are entitled to the statutory minimum. If you have been employed for less than one month then you are not entitled to notice. However if you have been employed for between one month and two years then you are entitled to two weeks’ notice. Should your employment period be more than two years then an extra week for each additional year is added to your entitlement, up to a maximum of 12 weeks after 12 years service. In the event of a serious incident which could constitute gross misconduct then you can be dismissed without notice. Your contract may set out examples of gross misconduct, for instance, theft from your employer.

Unless the behaviour complained of is extremely bad, your employer should seek to solve the problem rather than move straight to dismissal. Policies for dealing with disciplinary matters vary, but the following is required as a minimum process:

You should be told in writing of the problem and invited to a meeting to discuss it.
At the meeting you should be given an opportunity to explain your side of events. You may be accompanied by a member of your trade union or a work colleague.
You have a right to appeal any decision made. The appeal should be handled by a different member of staff than the one at the original meeting.

This procedure should be followed before a dismissal, demotion, pay cut or similar action is taken. If it is not followed then a dismissal can be automatically unfair.

In order for a dismissal to be fair it must be for a potentially fair reason and carried out in a fair and reasonable way. Potentially fair reasons are:

capability (e.g. not having the qualifications or abilities required)
conduct
illegality (e.g. not having a right to work)
redundancy (covered further down this page)
or some other substantial reason.

In October 2006 retirement will become another potentially fair reason for dismissal.

If you are dismissed then you are entitled to written reasons for the dismissal. There are some reasons for dismissal which are automatically unfair, including membership of a trade union, 'whistle blowing’ or pregnancy. You should seek legal advice as soon as possible after dismissal to see if you have a claim, as there is a time limit of three months from the dismissal for you to make the claim.

Even if there is a potentially fair reason then the dismissal should still be carried out in a fair way. The disciplinary procedure above must be followed, as it is a minimum.

If you are dismissed and it is not for a potentially fair reason or it is not carried out reasonably, then you may be able to make a claim to an employment tribunal for unfair dismissal. In order to qualify to make a claim you must have been an employee rather than a contractor, dismissed, and employed for a year. You should seek legal advice to see if you may be able to claim.

If you have been unfortunate enough to be selected as part of a redundancy procedure or have been told that you are potentially redundant, then this should normally be the start and not the end of the process followed by your employer. If your employer is considering redundancies but fails to follow the basic steps set out below this could result in you being considered to have been unfairly dismissed.

You should seek advice on your particular circumstances as early as possible in the process so that you can participate fully in the consultation process. If you have already been dismissed, then you should seek advice as soon as possible afterwards. It may be possible to appeal against the decision or to make a claim to an employment tribunal. There are strict time limits for formal legal proceedings.

Redundancy occurs when an employer is going to reduce or stop a particular type of work or reduce or stop work at a particular location and therefore needs fewer employees. There are strict guidelines which must be followed before an employee can be made redundant. If possible the workforce should be maintained.

Firstly, the employer should demonstrate that a job is potentially redundant. This could be justified by evidence of a downturn in business or a need to restructure. Secondly, a period of consultation should take place before any decision to dismiss is taken. The object of this consultation is to ensure that those who may be affected by potential redundancy are fully informed of the reason why redundancies may be necessary. Selection criteria for selecting those whose jobs may be redundant will be considered during this consultantion and also ways of avoiding a redundancy situation arising, for instance when suitable alternative jobs can be found.

Consultation usually takes the form of a one-to-one meeting. Where there are more than 20 redundancies proposed, collective consultation is also required with trade union or other elected representatives. Consultation should be a dialogue. As an employee you should have your opportunity to make suggestions of ways to avoid redundancy and of identifying an alternative job.

If the above process has been followed and the eventual decision is to dismiss you for redundancy, then notice should be given. If you have worked for your employer for over two years then you have a statutory right to a redundancy payment.

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