Employment Law: Guidance & Law Surrounding Dismissal | May 2022

Employment Law: Guidance & Law Surrounding Dismissal | May 2022

Dismissing an employee should be the last resort for any employer, regardless of the reasons for the dismissal. However, since the topic was last considered in our monthly updates, several notable cases have been in the news - requiring employers to reflect on the current law and guidance surrounding dismissals and how to avoid getting this wrong. 

Reasons for Dismissal

Under Section 94 of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer and Section 98 details the fair reasons for a dismissal, and these are:

1. Conduct

  • This one is the most straightforward reason and in general terms relates to an employee’s misconduct

2. Capability

  • This can be around poor performance in the job/ill-health etc

3. Redundancy - a genuine redundancy arises only when either there has been or there is going to be:

  • a cessation of business
  • a cessation of business at the employee’s site
  • a reduction or cessation of work

4. Contravention of a statutory enactment

  • A dismissal can be potentially fair if the employee could not continue to work without contravening a statutory ban either on the part of the employee or the employer

5. Some other substantial reason

  • This covers almost any reason that is not included in the four reasons above. However, it needs to be a significant reason and may apply to areas such as personality clashes, refusal to accept changes to terms and conditions, business re-organisation, conflict of interest, pressure from third parties etc.

Fair Dismissal

While the above details the reasons for dismissal it also has to be fair, and the employer to have acted ‘reasonable’. So, what is it that makes it fair and reasonable?

The ACAS Code of Disciplinary and Grievance Procedures sets out the following to be followed as a minimum in a fair procedure:

  • The employee is informed in writing
  • The employee has a right to be accompanied
  • The employee has a right of appeal

Secondly, there is no legal definition of ‘reasonableness’ and it is obviously open to interpretation. However, there have been two landmark cases covering both these areas. The first is British Homes Stores v Burchell: EAT 1978 and focuses on the employer’s actual belief that someone was guilty of misconduct. The second case is Polkey v AE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd) [1987] IRLR 503 HL - the principle here in the latter is where the employer failed to follow a fair procedure in dismissing an employee. 

But who does this apply to?

Employees usually require two years’ service before they can raise an unfair dismissal claim and this is called ‘qualifying service’. There are a number of exceptions to this qualifying service and these include (but are not limited to) dismissals for whistleblowing, dismissals related to certain health and safety reasons or dismissals relating to unlawful discrimination. However, in most cases, provided there is no discriminatory reason underpinning the decision. Whilst it is possible to dismiss an employee with less than two years' service without any significant procedure being followed, employers are strongly advised in most cases to follow the procedural recommendations in the ACAS Code of Disciplinary and Grievance Procedures as far as possible (See link below).

https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

NB: This information is for general guidance only and is not legal advice. It should not be regarded or relied upon as a complete or authoritative statement of the law. However, if you have any HR issues on this or any other HR matters and would like to talk them through with our team, please contact us.

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