A dismissal occurs when an employer terminates an employee’s contract of employment. Employees who have 2 years’ continuous service with their employer have the right not to be unfairly dismissed.
However there are a number of specific reasons that will be deemed as automatically unfair which do not require any qualifying service period at all. There are also a number claims aside from dismissal, for instance unlawful discrimination, which an employee can bring from day 1 of employment.
Avoid unfair dismissal claims with the correct legal advice
Employers should therefore be careful not to fall into a trap of thinking that those employees with less than 2 years’ service have no employment rights at all.
Employers should also be mindful that a breach of the employment contract, such as a failure to provide the correct notice, could affect the enforceability of post termination restraints in the employment contract.
Fair reasons for dismissal
Reasons for dismissal are varied but a dismissal could be potentially fair if the employer is able to show that the reason (or the main reason) for the dismissal:
- relates to the capability or qualifications of the employee required for the work they are employed to do;
- relates to the conduct of the employee;
- is that the employee was redundant;
- is that the employee could not continue to carry out their role without breaching a statutory restriction; or
- some other substantial reason.
Whether or not a dismissal will be considered fair by an employment tribunal will depend on the specific circumstances of the case, in particular, whether the employer has carried out a fair procedure and acted reasonably in treating it as a sufficient reason for dismissal. The specific procedural requirements will depend on the type of dismissal.
If you are an employer and are contemplating dismissing an employee, we recommend that you seek advice at an early stage to ensure that you comply with your legal obligations and minimise the risk of legal action arising from a dismissal.
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