When Lord Sugar makes his legendary ‘You’re fired’ announcement on the BBC’s ‘The Apprentice’ programme, it is clearly for entertainment purposes. However, the reality of being sacked is often quite different. In real life, being ‘fired’ or ‘sacked’ is usually anything but entertaining. Dismissal can be personally devastating for all sorts of reasons. It can affect a person’s health, self-esteem, confidence, relationships and future chances of employment – depending on the circumstances.  This article looks at the different types of dismissals and the rights of employees who are dismissed.

Fair dismissal

It is only fair that employers have the legal right to sack or fire employees. They have to be able to maintain high standards of work and also high standards of conduct. The law protects the right of employers to dismiss employees for various reasons. However, for a dismissal to be ‘lawful’, employers have to produce clear written policies that make it clear 1) what actions/activities constitutes a dismissal ‘offence’ 2) the procedures used to administer dismissal proceedings.

Common reasons for dismissal include:

Poor performance. Sometimes known as ‘capability’ proceedings, employers can dismiss an employee if they fail to perform their duties at the standard expected of them. However, an employer cannot dismiss an employee for poor performance without warning. Employers have to raise concerns with employees and give them the chance to improve and if necessary, provide support to help them improve. In some cases, an employee’s poor quality work could be the result of ill health or of temporary circumstances outside work, such as a relationship breakdown or financial difficulties. In such cases, it is important for employees to discuss their circumstances with a line manager so that, if possible, alternative arrangements can be made or support provided.  For example, employees with carer responsibilities may be able to reduce their working hours or work more flexibly.

In other cases, changes, such as the implementation of new technology or systems, for example could leave employees unable to work at the required standard. If an employee is dismissed because they cannot use new technology/systems but were not given the necessary training to support this, dismissal under these circumstances could be ‘unlawful.’

If you believe that your employer is planning to dismiss you for not doing your job properly, it’s usually a good idea to make sure you are familiar with your workplace capability or performance management policy. It is also important to keep a record of any meetings or appraisals you have attended, where a manager has raised or does raise concerns about your performance.

Gross misconduct

A ‘summary dismissal’ or dismissal without warning or notice is often used if an employee is accused of gross misconduct. Workplace grievance and disciplinary policies will usually specify what an employer considers to be gross misconduct. Typically, this includes offences such as theft, fraud, violence or substance misuse. In health, care and education settings, gross misconduct may also include breach of health and safety policies, abuse of or inappropriate relationships with services users or breach of data protection policies.

Many employers now include inappropriate use of social media under the category of ‘gross misconduct.’  It is important to be familiar with such policies and to understand what an employer will allow you to post on public facing sites about them or about yourself in connection with your employment.  In most cases employers will take disciplinary action if an employee posts derogatory, defamatory or sensitive information about the employer, fellow employees or about individuals who access the service.

One case cited by many employment solicitors highlights the consequences of ‘historic’ posts on social media i.e. posts made several years before being discovered. In Creighton v Together Housing Association Ltd, an employee, Mr. Creighton, who had 28 years of service with his employer, was dismissed after it was found that he had posted derogatory comments about a colleague and about his employer on his public Twitter account.  Creighton was eventually dismissed for gross misconduct and, despite an appeal, his employer’s decision to dismiss him was upheld.  The case highlights the fact that even historic comments posted on the internet/social media about an employer or about colleagues could lead to a disciplinary hearing and ultimately to dismissal.

Even in cases such as the Creighton case, employers are still required to follow fair disciplinary procedures in order to comply with the law. They also have to investigate allegations in order to establish facts, give employees the opportunity to explain their actions and give them information about their right to appeal before ever dismissing them for gross misconduct.

Unfair dismissal

Although many employees who are dismissed might believe they have been treated unfairly, in law, there are very specific reasons why an employee could claim compensation for ‘unfair dismissal.’ This type of dismissal occurs when an employee is dismissed for ‘unfair’ reasons or because no fair process has been followed. According to the Government website www.gov.uk unfair reasons for dismissal are:

pregnancy, including all reasons relating to maternity
family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
acting as an employee representative
acting as a trade union representative
acting as an occupational pension scheme trustee
joining or not joining a trade union
being a part-time or fixed-term employee
pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
whistleblowing
(www.gov.uk reviewed on 04.10.19)

Constructive dismissal

“A constructive dismissal is when an employee resigns because of a very serious breach of their employment contract, which they feel makes it impossible for them to continue in their job.” (Trade Union Congress)

This type of dismissal is like a ‘self-dismissal’ in that an employee resigns from their job, but does so because they feel forced to or don’t feel that they have another option. This is usually because they believe that their employment contract has been breached and, as a result, they feel they cannot continue working with a particular employer.  Reasons for the employment breach vary but could include an employer’s repeated failure to deal with an employee’s allegations of bullying and harassment, an employer unfairly disciplining an employee or an employee could feel that they are being forced to work in unsafe conditions.

To make a successful claim for compensation against an employer on the grounds of ‘constructive dismissal’, employees have to be able to prove that they exhausted all other options to resolve problems and were left with no other option than to resign. As with all claims, employees who choose this route, need to have substantial evidence to support their claims. This includes relevant diary entries of incidents, records of meetings/emails and or of appraisals.

Qualifying period

To make any claim against an employer for dismissal, an employee must have been employed by the employer for at least two years. Employees with any length of employment can make claims against employers for discrimination if the claim is based on a ‘protected characteristic’ such as religion, gender or sexuality. However, for claims that are not based on discrimination, the two-year qualifying period applies.

Legal advice

Before taking legal action against an employer, employees should always seek legal advice or specialist advice from an Employment Lawyer, Citizens Advice Service or from their Trade Union. As mentioned previously, it is also important to keep accurate records of incidents, witnesses to incidents, minutes of meetings and copies of relevant emails or letters that could be used to support a claim.

For further information and advice;

Speak to your Trade Union representative

Check the law society for details of solicitors that specialise in employment law  in your region at; https://solicitors.lawsociety.org.uk/

Equality and Human Rights Commission; https://www.equalityhumanrights.com/en/equality-act/protected-characteristics

Citizens Advice; https://www.citizensadvice.org.uk/

ACAS (Advisory, Conciliation and Arbitration Service); acas.org.uk

 

Ruth McGuire is an Education Inspector with nearly 15 years of inspection experience. She has taught in both further and higher education. She is also a well-established education and training consultant, writer and freelance journalist. She is a Governor of an outstanding sixth form college and also holds board roles within the NHS.