Employers who wish to terminate an employee’s contract must ensure that they can justify their decision. Terminations or dismissals must be fair. Usually, a fair dismissal requires that it arises for one or more of the following reasons:
- Conduct – Where a person’s conduct is such that they cannot continue. The most important is gross misconduct, which is sometimes difficult to establish and to rely upon except in the most serious cases.
- Capability – Where a person is incapable to do the job for which they are employed
- Redundancy – Where either the job or the person’s requirement to do their job has ceased to exist
- Illegality – Where it would or has become illegal for the employed to continue to be employer
- Substantial reason — Any other reason which could be considered reasonable and appropriate but which does not fall within one of the above reasons.
If one of these reasons cannot be established, then a dismissal is likely to be an unfair dismissal, giving rise to a potential claim against an employer.
Unfair Dismissal – An employer should only dismiss an employee if the reason for the dismissal is fair and the dismissal is dealt with fairly, as stated above. An unfair dismissal has potentially very expensive consequences and perhaps more importantly it can have a very damaging effect on the reputation of the employer. We work with both employers & employees to help ensure that dismissals are fair thus avoiding the need for any claims. Where claims are made, then we advise on how to deal with this and what action should be taken.
Wrongful Dismissal – Wrongful dismissal is a claim arising from a breach of contract – usually the failure to give the contractual notice period or to make a payment due under the contract, whether a payment in lieu of notice or a contractual bonus. The claim against an employer is usually one for monetary damages. We review contracts to advise employers how to comply with their obligations and for employees to ensure they are aware of their rights.
Constructive Dismissal – Constructive dismissal occurs when an employee terminates his contract of employment due to a fundamental breach of it by his employer. Usually an employee resigns and then brings a claim for wrongful and/or unfair dismissal.
Redundancy – In the event of a true redundancy situation, there are several obligations imposed on employers. We help you with selection and consultation processes as well as advice regarding payments due to employees.
Any questions? Contact me