Dismissals
Fair Dismissal (Employment Rights Act 1996)
A dismissal is legally fair if it is for one of the following five fair reasons:
- Conduct – Dismissal due to misconduct, such as theft, fraud, or serious breaches of workplace policies.
- Capability or Performance – If an employee is unable to perform their role due to lack of skill, qualifications, or long-term illness.
- Redundancy – If the job role is no longer needed due to business changes. The employer must follow redundancy procedures, including consultation and redundancy pay where applicable.
- Statutory Restriction – If continuing employment would break the law (e.g., a driver losing their licence).
- Some Other Substantial Reason (SOSR) – A legally valid reason not covered by the above, such as business reorganisation or reputational risk.
Employers must follow a fair process, such as giving warnings (except for gross misconduct), conducting meetings, and allowing an appeal.
Unfair Dismissal
Employees with at least two years’ continuous service can claim unfair dismissal if they believe they were dismissed without a fair reason or without following a fair process.
However, some dismissals are automatically unfair, meaning employees can claim from day one, such as:
- Pregnancy or maternity-related dismissals.
- Whistleblowing.
- Refusing to work in unsafe conditions.
- Discrimination based on protected characteristics (Equality Act 2010).
If an unfair dismissal claim is successful, the employer may be ordered to:
- Reinstate the employee.
- Re-engage them in a different role.
- Pay compensation, which includes a basic award and a compensatory award.
Constructive Dismissal
This occurs when an employee resigns because the employer has seriously breached their contract, such as:
- Cutting pay without agreement.
- Creating a hostile work environment.
- Changing job roles unfairly.
Employees can claim constructive dismissal if they have at least two years’ service (except in cases of discrimination or whistleblowing).
Wrongful Dismissal
Wrongful dismissal happens when an employer breaches an employee’s contractual rights, typically by:
- Failing to give proper notice (unless it’s gross misconduct).
- Dismissing without following the contractual procedure.
Employees can claim wrongful dismissal regardless of their length of service. Claims can be made in employment tribunals or civil courts if the amount exceeds the tribunal limit (£25,000).
Redundancy Rights
If an employee is dismissed due to redundancy, employers must:
- Conduct a fair redundancy selection process.
- Consult affected employees.
- Offer alternative roles if available.
- Provide statutory redundancy pay if the employee has two or more years of service.
Failure to follow these rules can result in a claim for unfair dismissal or protective awards if there was no proper consultation.
Important Key Points For An Employer
- Ensure a valid reason for dismissal.
- Follow a fair and documented process.
- Consider alternatives before dismissal (e.g., warnings, training, or redeployment).
- Provide proper notice and final pay.
- Be aware of discrimination and automatically unfair reasons.
Book your initial consultation with our Employment Solicitors in Birmingham. Freephone 0330 333 8797, request a callback or email info@wildings-solicitors.co.uk for specialist advice.
