Dismissals

Dismissals is the term used to describe the termination of your employment. There are various types, and therefore various processes and procedures that an employer would need to go through before carrying out a dismissal. They are very much a last resort for an employer to take. In the event of an employer deciding that dismissal is the only option, it must be conducted fairly and without prejudice. Employers will therefore normally seek advice from their internal HR team or out-sourced HR service in order to ensure they carry out all procedures fairly.

Types of Dismissal

Fair dismissal

Fair dismissal is when an employer has sound and justifiable reasons for carrying out a dismissal. Redundancy will also fall under this category, although of course, the reasons why an employee is selected for redundancy must be fair.

These reasons are varied and come under four key areas:

Capacity – if the employee lacks the ability, or is incapable, of completing the job
Performance – if the employee’s performance is below what is required for the job,
Misconduct – if the employee’s behavior is below workplace standards
Redundancy – if the job which the employee was previously completing is no longer necessary for the business or technology has made their role unnecessary

Voluntary Redundancy

If you know your employer is going to be making redundancies, you can volunteer to put yourself forward for it, which would count as fair dismissal as you’re volunteering and therefore wouldn’t be able to challenge this if you changed your mind. Quite often people will go for voluntary redundancy in order to save themselves the hassle of waiting and not knowing what’s happening when they know their job is at risk. ]

Unfair dismissal

This could include situations where an employee has not been informed of a sufficient reason for their dismissal, or the employer has not followed their own policy regarding dismissals or disciplinaries. Unfair dismissal can be a tricky one to prove, so it’s a good idea to consider anything that could have been a trigger for it. This might include things like you having joined a Union, felt like you were forced to retire or requested flexible working. Those examples are all things that fall under your employee rights so you cannot be dismissed simply on those grounds alone.

Constructive dismissal

Constructive dismissal is when you feel you’ve had to leave your job or feel “pushed out” due to the way your employer treats you. This again can be a difficult one to prove, as what is considered acceptable or unacceptable conduct is subjective and open to interpretation – even when using policies as a guideline.

Wrongful dismissal

A typical wrongful dismissal would be when an employer has plainly breached the terms of an employee’s contract during the dismissal process or during the processes previously which led to the dismissal. An example of this would be if you were not given the amount of notice stated in your contract.

How to Dismiss an Employee

Regardless of which are the reason for the dismissal may fall under, you need to follow fair and transparent procedures for dismissal. This means that you must adhere to the processes outlined and described in the employee handbook or employment contract.

It is important to follow these guidelines and make sure that you are only dismissing employees on fair grounds. If you do not follow good practice as outlined above, you may be running the risk that the employee you are trying to dismiss runs a claim for unfair dismissal. To avoid coming into any issues with dismissing employees, make sure that you seek advice in advance of taking any action.

Dismissal Procedure

A dismissal procedure should have three parts:

Initial meeting

Before terminating an employment contract, you should arrange a meeting.

Steps to get the most out of a dismissal meeting

Give notice: You should give your employee at least 48 hours’ notice before the meeting.
Be prepared: Before your meeting, collect tangible facts that support your dismissal decision.
Document, document, document: Everything you or the employee says or does must be written down.
Remain professional: Don’t get emotional. Don’t make personal remarks about the employee. Stick to the facts.
End well: An employee should never be asked to leave after the meeting.
Remember: there are two more steps to go. The purpose of the meeting is to discuss the dismissal, not to enact it.

2. Time for appeal

Your employee may wish to appeal the dismissal decision. It is important to respect this part of the process. For best practice, leave a five-day window for the employee to appeal. Allowing this time will actually save time in the long run. Most claims are made when employees feel that they have been treated unfairly and haven’t had the opportunity to bring up their concerns.

3. Termination

You have had a meeting to discuss the problems. You have waited for the appropriate amount of time to pass for appeals. Your decision to dismiss your employee still stands, and the contract is terminated. At this stage, it is important to keep things amicable. Offer to write a reference for their next employment.

Summary Dismissal

Summary dismissal is the dismissal of an employee on the spot and without notice. Normally an employee will be entitled to the notice period provided by his contract or to the relevant minimum statutory notice period if greater. Only in exceptional circumstances will dismissal without notice be justified signifying that the employer can no longer be reasonably expected to continue the relationship even just for the period of notice. An employer is entitled to dismiss an employee without notice which is referred to as summary dismissal, for issues of gross misconduct. Such issues are normally detailed in the employer’s disciplinary policy, work rules or even in the law.

The term denotes unilateral termination of the employment relationship by the employer without observing the required period of notice, only justified circumstances for example untrustworthiness; incapacity to continue performing the agreed work; carrying on an activity in competition with the employer; unjustified absence from work; and acts constituting assault or defamation. These are merely examples cited that can be listed along with the substantial reasons, other reasons of comparable seriousness may also justify summary dismissal.

Dismissal in India

Ordinary Dismissal

An employer can technically terminate an employee for any reason. This may be the letter of the law, but legislative and judicial interventions have softened this hard stance.

Dismissal with Cause

Dismissing an employee for cause is a nice way of saying that the employee did something very bad. Examples of these actions include the following: