Dismissals: Lawful, Unlawful and Redundancy
What Are the Types of Dismissal?
The topic of dismissal of an employee is one that has drawn much attention from the courts, businesses and relevant authorities. This is due to the fact that employers and business often mistreat and abuse the rights of employees. Employers often dismiss employees for absurd and unfair reasons based on bias, limited finances, etc.
It has become crucial that there are measures put in place to ensure that the rights of employees are upheld. This is especially true for employers and employees in the UK. UK law regarding employee dismissals is constantly changing and being updated. The actual laws and amendments in the UK regarding employment aspects, including dismissals, is stipulated in ‘The Employment Rights Act’ of 1996.
The basic outline and rules of this act regarding lawful and unlawful dismissals are provided in this article. We'll also look at:
- Unlawful Dismissal
- Constructive Dismissal
- Lawful Dismissal
- Voluntary Redundancy
- Involuntary Redundancy
- Mutually-Agreed Severance
The following are the guidelines and rules regarding what constitutes an unlawful dismissal:
- The obvious situation of an unlawful dismissal is when the employer does not provide any valid reason or any reason at all for the firing of an employee.
- When an employer does not follow the dismissal and disciplinary processes of the business.
- When an employer does not adhere to the minimum statutory dismissal procedure as stipulated in the employment rights act.
- If an employer dismisses an employee because they have requested their mandatory leave e.g. annual leave, sick leave, lunch breaks.
- If an employee is dismissed due to them joining a trade union or other employee representative party.
- When an employee is dismissed after taking part in legal boycott actions that last less than 12 weeks e.g. striking.
- When an employer forces an employee to retire, this is known as compulsory retirement and is unlawful, unless there is strong justification on the part of an employer e.g. the employee can no longer perform their duties due to old age. In this case, both parties must submit their cases to an employment tribunal.
- When an employer dismisses an employee on the grounds of maternity, paternity, or family leave.
- If an employee is dismissed as they needed time of to perform jury duty.
- If an employee is not given the relevant notice period prior to their dismissal as stated in their employment contract.
An example of unlawful dismissal can be seen in the case, ‘Kedziora v Servest Group Ltd UKEAT/0099/16/RN (2016)’, wherein the claimant appealed and won her dismissal on the grounds of sexual and racial discrimination.
There is an additional unlawful dismissal criteria known as constructive dismissal. This is when an employee is forced out of their contract due to the conduct of an employer. For example, if an employer requests unreasonable changes to the duties required from an employee such as working 7 days a week of night shifts.
The following are the guidelines and rules pertaining to what constitutes a lawful dismissal:
- When an employee acts in an unlawful or unethical manner in the workplace e.g. theft, constant late arrival at work, and lack of duty completion. In the case of minor offenses an employee needs to be given three written warnings before a dismissal but for a serious offense, a direct dismissal is permissible.
- If an employee is dismissed for a reason related to them not having the required skills or qualifications for the job.
- If an employee acts in direct breach of their employment contract or any other relevant business rules and regulations.
- If there is a relevant statutory duty or restriction prohibiting the employee to continue with their employment.
The topic of dismissals also covers a factor known as redundancy. Redundancy is when an employer dismisses an employee because the business does not require staff for a certain position anymore. An employer must have a valid work related reason to dismiss an employee on the grounds of redundancy. If an employer is concerned about the performance of an employee, this is a legal performance issue and not one of redundancy. An employee will receive redundancy compensation upon termination of a contract. This payment differs depending on an individual’s employment contract and the type of redundancy. There are three types of redundancy as follows.
1. Voluntary Redundancy
This type of redundancy is when an employer offers an employee a financial incentive/payment for the employee to leave the business voluntarily. This differs from an involuntary one as an employer will not have to choose a select few people to dismiss. During the procedure for a voluntary redundancy all the same rules and processes apply as compared to an involuntary redundancy. The procedure is still regarded as a dismissal; however, employees usually receive higher compensation packages as an incentive to leave. This process ensures that employees leave of their own accord which makes it less painful for them and for the company. Businesses usually target a specified age range or length of time worked range of employees to offer a voluntary redundancy to.
2. Involuntary Redundancy
This type of redundancy is also known as compulsory redundancy. The difference is that employees do not have an option to leave the company. The business forces an employee out of their contract due to the business closing down a division, or there is a surplus of staff for a minimal amount of work. The employer must use objective methods when choosing which employees become redundant. The common criteria an employee considers when choosing is; employees with least amount of service, their disciplinary records, skills, qualifications, peer reviews. The compensation for this type of dismissal is less than that of a voluntary one and is based on; years of service, type of employment (part time or full time), pension benefits, tariff options, and an employee’s wages.
3. Mutually Agreed Severance
There is a third type of redundancy that some consider to fall under the topic of retirement packages but I will add it here anyway. This type of redundancy leans more towards retirement packages. It is not regarded as a dismissal as is the case for the above two examples. It is when an employer and employee mutually agree to terminate the contract of employment. The difference stems from the fact that this can happen at any time and not only when there is a reduction in job opportunities for an employee. The employee will receive a severance package, that includes; payment for leave not taken, part-payment for the duration of the employment contract, and other benefits as stipulated in the employment contract. The other major difference between this and redundancy is that redundancy is regulated in the employment rights act whereas this type of termination is regulated by an employee’s contract of employment.
Conclusion and Case Study
As discussed above, compulsory retirement is grounds for an unlawful dismissal. John claims that Stewart is becoming less productive due to his age. This could constitute a lawful dismissal if it is true. There is not enough substantial evidence to suggest that John’s claims are true, therefore according to the employment rights act of 1996, section X, subsection 98ZA-ZH, John is in breach of the compulsory retirement law. Additionally, the fact that John deceptively suggested and presumes that Stewart was going to retire is grounds for unfair dismissal based of discrimination of age. In conclusion, whether you are an employer or employee it is always good to be educated about the laws of dismissals. This will give you an understanding of when you may fire employees as well as when you have been unfairly dismissed and have grounds for a legal law suite. The short video below will give you a quick summary of unlawful dismissals.
Please feel free to drop me a comment below if you think you have been unfairly dismissed!
Have you been unfairly dismissed?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.