”Dismissal” is the term used to describe the current termination of your employment/Contract.
There are various types of dismissal, and therefore various processes and procedures that an employer would need to go through before carrying out a dismissal or termination against an employee.
In our post today we will describe each kind of dismissal, and how employers need to carry them out, and what you as the employee can do about it to make sure procedures are carried out with the right procedures.
Dismissals are very much a last resort for an employer to take. In the event of an employer deciding that dismissal is the only option, it must be conducted fairly and without prejudice. Employers will therefore normally seek advice from their internal HR team or out-sourced HR service in order to ensure they carry out all procedures fairly.
Before a situation reaches dismissal, employers will need to have followed their disciplinary policies and demonstrated that they have reasonably tried all other methods to solve the problem before resorting to dismissal.
Here are the different types of dismissals that can be used to make sure your dismissals is fair…
1. Fair dismissal
Fair dismissal is when an employer has sound and justifiable reasons for carrying out a dismissal. Redundancy will also fall under this category, although of course the reasons why an employee is selected for redundancy must be fair – but that’s a whole other subject.
Reasons for a fair dismissal can relate to an employee’s conduct, capability or qualifications. Conduct and capability are often the most common reasons for fair dismissal.
In this situation, an employer would have acted fairly and justifiably, so there would be very little room to protest the decision made.
2. Voluntary redundancy
If you know your employer is going to be making redundancies, you can volunteer to put yourself forward for it, which would count as fair dismissal as you’re volunteering and therefore wouldn’t be able to challenge this if you changed your mind.
Quite often people will go for voluntary redundancy in order to save themselves the hassle of waiting and not knowing what’s happening when they know their job is at risk. However, just because you volunteer for redundancy, it doesn’t necessarily mean your employer will select you, as they have no legal obligation to do that.
3. Unfair dismissal
Unfair dismissal is exactly what it says on the the tin: Unfair.
This could include situations where an employee has not been informed of a sufficient reason for their dismissal, or the employer has not followed their own policy regarding dismissals or disciplinaries. As mentioned, dismissal is a last resort and there needs to be a lengthy process that proves the problem hasn’t been resolved by other means before dismissal is considered.
Unfair dismissal can be a tricky one to prove, so it’s a good idea to consider anything that could have been a trigger for it. This might include things like you having joined a Union, felt like you were forced to retire or requested flexible working. Those examples are all things that fall under your employee rights (along with plenty more examples) so you cannot be dismissed simply on those grounds alone. Some dismissals will fall under the category of being “automatically unfair” so it wouldn’t need much probing in order to demonstrate that the dismissal was unfair.
4. Constructive dismissal
Constructive dismissal is when you feel you’ve had to leave your job or feel “pushed out” due to the way your employer treats you. This again can be a difficult one to prove, as what is considered acceptable or unacceptable conduct is subjective and open to interpretation – even when using policies as a guideline.
An example of constructive dismissal is having your salary stopped – this would be a very clear case which would stand up in an Employment Tribunal very easily. No matter where an employee might be in a disciplinary or dismissal process, your pay cannot simply be stopped.
Another example could be where an employee feels bullied and/ or harassed in the workplace. This example could be more difficult to prove as like unfair dismissal, the evidence is open to interpretation.
Before taking any action, you should discuss with an independent body whether you have a case for constructive dismissal. If you do, leave your job without hesitation. Although it may be tempting to just stay and try to “ride it out”, your employer could argue that you staying in the role is a form of you accepting the way things are.
5. Wrongful dismissal
A wrongful dismissal could quite easily be confused with an unfair dismissal, although again does lend itself to its name: wrongful.
A typical wrongful dismissal would be when an employer has plainly breached the terms of an employee’s contract during the dismissal process or during the processes previously which led to the dismissal.
An example of this would be if you were not given the amount of notice stated in your contract. A situation where that may be exempt is in the event of gross misconduct, such as violence at work.