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Just Because You’re the Boss, it Doesn’t Mean You Can Sack Your Employee

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Following on from our blog that addressed the question of “how do you sack someone kindly?” we’ve been asked if we could describe situations in which you can’t sack someone and the associated pitfalls and legal issues that this encompasses. 

What is a fair dismissal?

Before we look at the list of situations that constitute unfair dismissal, it’s worth reminding ourselves of what makes a dismissal ‘fair’:

- There must be a valid reason, such as performance, capability, or conduct (including gross misconduct)

- Dismissal is due to redundancy

- There is a reason that prevents the employee from doing their job (e.g. loss of driving license)

- There is some other valid reason for dismissal, such as a temporary contract has come to an end

You also have to act reasonably when dismissing someone. This generally means following the employer’s disciplinary process and ensuring that the dismissal meeting is conducted properly and professionally.

Having been reacquainted with the principle of fairness in dismissal, let’s look at what will mean a dismissal is unfair and could cost face and fortune at an industrial tribunal.

What makes for an unfair dismissal?

There are two types of unfair dismissal. The first of these is when the sacked employee believes that the dismissal is unfair. They may believe that the reason given for the sacking was not the real reason, or that the reason was unfair, or that you acted unfairly either in process or in the act of dismissal.

The second type of unfair dismissal is classed as automatically unfair. Irrespective of how you have acted in making the dismissal, it will be considered unfair if the underlying reason has anything to do with:

- Discrimination for any reason, including age, gender, pregnancy and maternity, race, religion, sexual orientation etc.

- Acting as a trade union representative or employee representative

- Acting as an occupational pension scheme trustee

- Being a part-time or fixed-term employee

- Pay and working hours

- Whistle-blowing

- Joining or not joining a union

In addition to these reasons, some bosses are tempted to make people take compulsory retirement. They would be wise to remember that there must be full justification when doing so, otherwise it could be considered to be unfair dismissal.

Many people falsely believe that sacking someone because of disability is automatically unfair. This actually isn’t the case, though dismissal on disability grounds can only be made if reasonable adjustments can’t be made that will enable the disabled employee to do their job. These rules also apply to sacking someone because of long-term illness: you should make every possible effort to help the employee back to work – this includes getting a medical report with the employee’s permission, arranging an occupational health assessment, and then making reasonable adjustments so that they can do their job.

The importance of getting it right

If you are found to have dismissed an employee unfairly, there are a number of penalties that might be made. These include:

- Reinstatement of the employee

- Payment of compensation based upon age, pay, and length of service

Perhaps just as damaging is the destruction of trust between the employer and employees that an unfair dismissal causes. When managers and the organisation are trusted by employees, staff morale and productivity rises. Making an unfair dismissal is one of the quickest ways to break a trusting work environment and destroy productivity.

For more informationhttps://www.gov.uk/dismiss-staff/unfair-dismissals

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If you have any questions or feedback, please do not hesitate to contact me -alex.henman@esuppliesmedical.co.uk - 01865 261451

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