What is constructive dismissal?
Constructive dismissal occurs when an employee is forced to resign against their will due to the conduct of their employer. However, the employee must be able to prove that the reasons for their resign were extremely serious. Reasons that could be construed as serious could include:
- Letting an employee be harassed or bullied at work
- Not being paid correctly
- Being suddenly demoted for no reason
- Being forced to accept unreasonable changes to how they work (E.g. Having to work on night shifts, made to work in dangerous conditions)
- Not correctly following formal grievance or dismissal procedures
If an employee decides to claim for constructive dismissal, they must be able to show that at least one serious incident, or a series of more minor yet linked incidents, have taken place.
What is wrongful dismissal?
A wrongful dismissal normally occurs when an employee can prove that their employer has broken the terms of their employment contract during the process for dismissal, e.g. dismissing an employee without providing proper notice.
Wrongful dismissals can be extremely for employees and employers alike, and sadly often end in employment tribunals. Ensuring that you correctly follow legal dismissal procedures, as well as those laid out within your own employment contracts and employee handbooks, is therefore vitally important if you wish to avoid the cost, time and negativity associated with proceedings.
Is there a procedure for instigating dismissals?
Dismissals are very serious matters that need careful handling by employers. Before taking any action, you should ensure that you first gather all the facts of the circumstances surrounding the decision to dismiss.
In the first instance, you should consider whether dismissal really is the only option open to you. For example, if the issue relates to poor performance or timekeeping, have you considered whether the issue is entirely within the employee’s control? It could be a result of inadequate leadership, defective work systems, or poor management – see if there any issues that could be resolved and in turn could improve the employee’s conduct in the first instance.
If you still feel that the situation has not improved, then should proceed to disciplinary action, which ultimately could result in dismissal. This stage will involve calling formal meetings, investigating issues, and informing the employee of all stages of progress by written communication.
If you still feel, following a meeting, that dismissal is the only option, then you must follow the following rules:
- Ensure that the you provide written confirmation of the dismissal
- Provide the employee with an opportunity to appeal
- Ensure that you provide at least a basic reference in order for the employee to find a new role (You are not allowed to supply a bad reference)
There are certain circumstances where normal procedures may not be applicable when considering dismissing an employee. If you have an employee that can fit into any of the categories below, then you may need to adapt your procedures accordingly:
Someone is on maternity leave
Many people believe that they cannot dismiss an employee whilst they are on maternity leave, but you can – it just cannot be the reason for the dismissal. A person on maternity reserves the right to return to their job unless they have been made redundant and there is no alternative work, they have been away from work for more than six months and it is not possible for them to return to their old role, or they have breached contract of employment (such as working for another company whilst on leave.
An employee is still on probation
Anyone on probation within their workplace does not have any specific legal rights. You can dismiss someone on probation with a minimum one week’s notice, and you only have to provide a longer period of notice if it stipulates it within your standard contract of employment.
The employee in question is entitled to ask for an extension on their probation period, or to be given extra training in order to improve in their workplace duties. However, you do not have to agree.
You have an employee on a fixed term contract
An employee on a fixed-term contract usually finish their job on a set date, or when a certain workplace project is finished.
However, you can dismiss an employee before the end of their fixed-term contract if the contract stipulates that you can. You will usually need to provide them with at least one week’s notice, unless they have worked for you for more than two years, or if their contract says that they are entitled to more notice.
You can also dismiss an employee at the end of the fixed-term contract, as long as you ensure it is done fairly and legally.