This month our friends at the Law Donut have offered their advice on how to deal with dismissing employees. For more legal hints and tips Law Donut can be found at Law Donut and offers you all the advice and resources you need to run a successful business.
Dismissing employees or making them redundant can be difficult at the best of times. But it gets worse if you are taken to an employment tribunal to face a claim of unfair or wrongful dismissal. Following the right procedures helps protect your business and minimise the risk of a legal dispute.
An employee (even a part-timer) with one year’s continuous service who is sacked without a fair reason and reasonable treatment can claim unfair dismissal unless you can show that it is fair. Fair grounds for dismissal include the conduct of the employee, their ability or qualifications, redundancy or reaching retirement age. You must follow a fair and reasonable dismissal procedure.
A dismissal is automatically unfair if it is for one of a number of prescribed reasons, including whistleblowing, health and safety activities or illegal discrimination. This applies to all workers, no matter how short their period of employment.
An employee who has been unfairly dismissed can ask the employment tribunal to order re-employment or award compensation for unfair dismissal. The basic award is £11,400 (depending on age and length of service) and compensation for financial loss up to a maximum of £65,300. Compensation can be unlimited if the employee has suffered from illegal discrimination.
Always seek professional advice before dismissing an employee with more than one year’s service.
If an employee’s contract of employment does not specify a notice period, they are entitled to a reasonable period of notice if you dismiss them. In any case, the employee is entitled to at least the statutory minimum notice period of one week after one month’s employment. After this, entitlement increases at the rate of one extra week per year, to a maximum of 12 weeks after 12 years’ employment.
If you dismiss an employee without the right notice, this is wrongful dismissal. The employee is usually entitled to compensation equal to their normal remuneration (both salary and benefits) during the notice period. There are exceptions, for example if the employee is dismissed for gross misconduct that justified immediate dismissal.
If an employer breaches the contract in a way that goes to the root of the contract, the employee may resign immediately and claim constructive dismissal. The employee claims that what you did is so inconsistent with a continuing employer/employee relationship that it entitles the employee to consider themselves dismissed. For example, an employee can claim constructive dismissal if you reduce pay without agreement, or tell the employee to resign.
Employees who are made redundant are not entitled to claim redundancy pay until they have over two years’ service. Tax is not payable in respect of statutory redundancy pay.
Avoid claims that a redundancy is unfair dismissal by ensuring that it is genuine. In general, the job must have disappeared. Also, the employer must select employees for redundancy on a fair and objective basis, after reasonable consultation and with adequate notice and a fair appeals procedure.
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