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Information
Sheet 19 - Dismissal Procedures
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There have been many changes to employment law and regulations in the last few years. A key area is the freedom or lack of freedom to dismiss an employee. An employee's employment can be terminated at any time but unless the dismissal is fair the employer may be found guilty of unfair dismissal by an employment tribunal. We set out below the main principles involved concerning the dismissal of employees. We have written this factsheet in an accessible and understandable way but some of the issues may be very complicated. Professional advice is important before any action is taken. THE RIGHT TO DISMISS EMPLOYEES Reasons for a fair dismissal would include the following matters. The
person does not have the capability or qualification for the job (this
requires the employer to go through consultation and/or disciplinary
processes). The
employee behaves in an inappropriate manner (the terms and conditions
of employment should refer to what would be unreasonable behaviour
and the business must go through disciplinary procedures). Redundancy
providing it is a genuine redundancy with no suitable alternative
work, there has been adequate consultation and there is no discrimination
in for example, who is selected. The
dismissal is the effect of a legal process such as a driver who loses
his right to drive (and the employer is expected to explore other
possibilities such as looking for alternative work before dismissing
the employee). Some other substantial reason. CLAIMS FOR UNFAIR DISMISSAL After one year's service employees can make a claim to an employment tribunal for unfair dismissal within three months of the date of the dismissal and if an employee can prove that he/she has been pressured to resign by the employer he/she has the same right to claim unfair dismissal. If the employee proves his/her case the tribunal can come up with three remedies which are re-instatement
which means getting back the old job on the old terms and conditions re-engagement which would mean a different job with the same employer |
compensation where the amount can be anything from a smallish sum to an unlimited amount if the dismissal was due to some form of discrimination. If the dismissal is demonstrated as being due to any of the following it will be deemed to be unfair regardless of the lenh of service discrimination
for sex, race or disability pregnancy,
childbirth or maternity leave refusing to opt out of the Working Time Regulations. GOOD DISCIPLINARY PROCEDURES On many occasions a dismissal which seems quite justified to the employer will be found to have been unfair if correct disciplinary proceedings were not followed. ACAS (the Advisory, Conciliation and Arbitration Service) has developed a Code of Practice for Disciplinary Practice and Procedures and it is recommended that employers should follow this code. In outline the procedure is as follows (the original is four pages long and can be obtained from ACAS on 020-7396-5100). The
terms and conditions of employment should refer to the disciplinary
procedures and details of warnings must be written and put on file.
The final warning should say that further occurrences of misconduct
could lead to dismissal. Further
events would then lead to a formal investigation and the employee
should be invited to a disciplinary hearing. The hearing should be
documented and the employee be given every opportunity to put his/her
side of the story. There should then be a break in the proceedings
before any decision is taken on the individual's employment. The decision of the hearing should be communicated in writing together with an outline of the reasons for the decision taken and the employee should be told of a right to appeal. HOW WE CAN HELP We will be more than happy to provide you with assistance or any additional information required. For
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