In training delivery I often ask delegates to call out fair reasons for dismissal. The responses are always varied but ultimately what they think about falls under the same category; that of misconduct (and as an employee relations professional I could write a book on the things people have done that lead to their dismissal). They’re always surprised therefore when I tell them that they’re only covering one base when in fact there are 5:
1. Conduct – as I already mentioned the myriad of deeds that fall under the disciplinary policy;
2. Capability – by reason of ill health you are no longer able to carry on in your role;
3. Redundancy – the need for your role has diminished or reduced, or your employer intends your role to be carried out in a different location;
4. Illegality (statutory restriction) – if your continued employment would break the law. For example, a bus driver who loses their driving license or a sponsored migrant worker whose visa was withdrawn or expired; and
5. Some other substantial reason – there are a lot of events that could fall under this category but for ease the example I’ll leave you with is an employee who goes to prison.
Now that we’ve thought about the reasons it’s really important to understand that whatever the mechanism for dismissal, employers must follow a fair process. And be aware – the process for each can differ significantly. Failure to follow a fair process, even if there is no dispute that the end result was the right result, is likely to render the dismissal unfair. So ask yourself whether you have good policies and procedures in place, how you will ensure they are followed and whether you need help from an employee relations specialist.
I don’t intend to provide an exhaustive list but I’ve listed below some reasons for dismissal that are likely to be automatically unfair:
- because the employee asked for flexible working
- the employee refused to give up working time rights
- when an employee resigned and gave the correct notice period
- because an employee joined a trade union
- the employee took part in legal industrial action that lasted 12 weeks or less
- if the employee needed time off for jury service
- because an employee applied for maternity, paternity and adoption leave
- because an employee was on any maternity, paternity and adoption leave they were entitled to
- because an employee exposed wrongdoing in the workplace (whistleblowing)
- you forced an employee to retire (known as ‘compulsory retirement’) in the absence of an objectively justified retirement age)
If this post leaves you thinking that dismissal is more complex than you thought then you’ve reached the right conclusion.