Dismissal

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Discrimination

Discrimination is a treatment; consideration and/or making a distinction either in favour or against a person or group based upon a protected characteristic as set out in the Equality Act 2010.

The Equality Act 2010 sets out the rights and provisions in which an individual or group holds in relation to equality within the workplace. It recognises nine protected characteristics that are protected from acts of discrimination. These are Sex, Disability, Pregnancy/Maternity, Race, Age, Sexual Orientation, Gender Reassignment, Marriage/Civil Partnership and Religion and belief.

What is and/or the different types of Discrimination?

• Discrimination is usually as a result of direct conduct, indirect conduct, conduct of harassment, victimisation and in the instance of disability conduct arising from a disability and a failure to make reasonable adjustments.
  
  
• Direct discrimination is treating somebody less favourably because of a protected characteristic.
  
  
• Indirect discrimination involves imposing a provision, criterion or practice against an individual or group that by doing so places them at a substantial disadvantage.
  
  
• Harassment is a form of conduct which is unwanted and causes the individual to be subjected to an intimidating, hostile, degrading, offensive and humiliating environment.
  
  
• Victimisation is less favourable treatment imposed on an individual following them raising their upset and concern at how the Equality Act has been, is being or may be being followed. Victimisation can also apply when a person is treated less favourably because they have brought proceedings in the past in relation to a discrimination claim or provided evidence or information in connection with such a claim.

Dismissal

Dismissal is when your employer ends your employment. This could happen in several ways:

• Your employer tells you they are ending your employment, with or without notice
• You or your employer breaches your employment contract
• Your Fixed-Term contract is not renewed

If your employer has dismissed you, they must show they have:

• a valid reason that they can justify
• acted reasonably in the circumstances
• a fair reason for dismissing you
  
  

It is important that your employer has conducted a full investigation before dismissing you. If your employer acted fairly but came to the wrong conclusion (for example, if they have got the facts wrong) this will not necessarily mean your dismissal is unfair.

Your employer is required to demonstrate that they have been consistent in their sanction and have not sacked you for doing something that they normally let other employees do.

Your employer must follow guidelines and policy and practice procedure prior to dismissing you unless you are terminated on grounds of gross misconduct.

For claims to be presented for dismissal related matters, there are strict rules which must be followed. To bring a claim of dismissal related matters you will need to demonstrate that you are or were an employee and employed for the requisite period of time (2 years).

It's important to understand what unfair dismissal is by law. This is because different rights might apply depending on the circumstances.

What is and/or the different types of Dismissal?

It might be unfair dismissal if an employee worked for their employer for at least 2 years and any of the following apply:

• there was no fair reason for the dismissal
• the reason was not enough to justify dismissing them
• the employer did not follow a fair procedure

The fair procedure must follow the Acas Code of Practice on disciplinary and grievance procedures, if it's to do with:

• unacceptable or inappropriate behaviour ('misconduct')
• performance ('capability'), unless it’s about illness

If the dismissal is because of another reason, it's a good idea to use the Code of Practice to inform the fair procedure.

Dismissal before someone has worked 2 years

If someone is dismissed before they have worked for their employer for 2 years, they will need to check what rights are available to them. This is sometimes known as 'short service dismissal'.

Depending on the reason for the dismissal, one of the following might apply:

• automatically unfair dismissal
• wrongful dismissal

Automatically unfair reasons

Some things are 'automatically unfair' if they're the main reason for dismissing an employee.

These include:

• making a flexible working request
• being pregnant or on maternity leave
• wanting to take family leave, for example parental, paternity or adoption leave
• being a trade union member or representative
• taking part in legal, official industrial action for 12 weeks or less, for example going on strike
• asking for a legal right, for example to be paid the National Minimum Wage
• doing jury service
• being involved in whistleblowing
• being forced to retire (known as 'compulsory retirement')
• taking action, or proposing to take action, over a health and safety issue

An employee does not need 2 years' service to claim automatically unfair dismissal.

Unfair dismissal because of a health and safety issue

An employer must not cause someone 'detriment' if they:

• reasonably believe being at work or doing certain tasks would put them in serious and imminent danger
• take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
• inform their employer about a health and safety issue in an appropriate way

Detriment means you experience one or both of the following:

• being treated worse than before
• having their situation made worse

Examples of detriment could be:

• their employer reduces their hours
• they experience bullying
• they experience harassment
• their employer turns down their training requests without good reason
• they are overlooked for promotions or development opportunities

If an employee is dismissed and one of these health and safety issues is the main reason, it might be classed as 'automatically unfair'.

Unfair dismissal because of industrial action

Employees cannot be dismissed for taking part in industrial action if:

• it's called as a result of a properly organised ballot
• it's about a dispute between them and their employer (for example, about terms and conditions)
• the employer receives a legally required, detailed notice about the industrial action at least 7 days before it begins
• they take part in the action at any time within the 12 weeks from when it began

Non-union members have the same rights as union members not to be dismissed if they take part in legal, official industrial action.

After 12 weeks, employees could be dismissed for taking part in industrial action if the employer has tried to settle the dispute. For example, the employer may have asked Acas to help find a solution.

The legal term is 'constructive unfair dismissal'.

If an employee feels they have no choice but to resign because of something their employer has done, they might be able to claim for 'constructive dismissal'.

What constructive dismissal is

An employee can make a constructive dismissal claim if they resign because they think their employer has seriously breached their employment contract.

Examples could include:

• regularly not being paid the agreed amount without a good reason
• being bullied or discriminated against
• raising a grievance that the employer refuses to investigate
• making unreasonable changes to working patterns or place of work without agreement

It could be because of one serious incident or a series of things.

Wrongful Dismissal – See section on unfair/wrongful dismissal above.

Dismissals with and without notice

Notice pay

In most cases, the person who's been dismissed is entitled to the same pay they'd normally get if they work their notice period.

The employee's final pay may be different from their usual monthly or weekly pay because of things like:

• how much holiday they've taken
• money being deducted for training courses
• being off work

They may need to get paid other outstanding money, for example bonuses or pay for working overtime.

Dismissal without notice for gross misconduct

An employer can dismiss an employee without giving notice if it's because of gross misconduct (when an employee has done something that's very serious or has very serious effects). The employer must have followed a fair procedure.

When an employee is dismissed for gross misconduct, they:

• leave immediately
• do not have a notice period
• do not get paid notice pay

There are some things the employer must still pay them for. These include:

• any work they have not been paid for yet
• any holiday they have built up ('accrued') but not used by the date they leave
• any expenses they're owed

The employer may also need to pay them for other work benefits, unless their contract says something different.

Redundancy

Why does Redundancy happen?

Redundancy can occur when an employer’s business, or part of the business has ceased to operate and/or the employer’s business has moved to a different place; the business’s need for work of a particular type has ceased or diminished meaning the role/s are no longer required.

The rules on redundancy are unclear and open to interpretation which can cause people to be subjected to unfair practices and processes. The obligations on the employer when making 20 or less roles redundant is to merely act ‘fairly and reasonably’ when looking at the candidate/s who are at risk.

In situations where 20 or more people are made redundant a more regulated process is required.

The guidance suggests that for a redundancy situation to be fair and reasonable, consideration needs to be given to the following:

• Is there a genuine redundancy situation/need?
• Have the correct employees who are likely to be affected by the redundancy been identified?
• Has particular consideration been given to identifying those who undertake similar work?
• Has a consultation taken place where you have been shown your scoring and/or allowed an opportunity to consider any suitable alternative roles?

There is no actual requirement for a step process or a number of consultation meetings unless the redundancy is for 20 or more roles. However, it is good practice to meet with the individuals at risk to keep them abreast of the developments and seek their assistance with any possible resolutions.

If you feel that you have been unfairly selected, for example you are the only person within your team placed at risk and selected, you may have been unfairly dismissed.

ACAS (Advisory, Conciliation and Arbitration Service)

Acas provides free and confidential advice to employers, employees and their representatives on employment rights, best practice and policies, and resolving workplace conflict. The helpline has a free translation service for over 100 languages.

You can ask Acas about:

• employment rights and responsibilities
• pay and the National Minimum Wage
• disciplineand grievance
• contractsand terms and conditions
• working time, rest breaksand holiday entitlement
• equality in the workplace
• working for an employment agencyor gangmaster
• agricultural workers’ rights

You must tell Acas that you're planning to make a claim. Notify Acas about making a claim to the tribunal. You'll be offered the chance to try and settle the dispute without going to tribunal by using Acas 's free 'early conciliation' service.

Statutory Limitation

In most cases, you have 3 months minus 1 day from the date the problem at work happened.

You must issue an Employment Claim in the Tribunal before this date otherwise you may risk not being able to make a claim of this nature if the limitation period lapses.