Unfair dismissal, wrongful termination and constructive dismissal
Dismissing an employee can be very complex. Terms such as “unfair dismissal”, “constructive dismissal” and “wrongful termination” are often a deterrent from terminating employee contracts even though the employee is simply not performing to the standards you require.
Ensuring your organisation follows the correct HR procedures will cover you from any risk in regards to claims of unfair dismissal, wrongful termination or constructive dismissal.
HR procedures will provide you with the road-map to dealing with any termination issues in a compliant manner, safeguarding you from any employment tribunal claims.
Dismissing an employee is always difficult, especially when this employee has been with your company a long time. When an employee has been with your company more than 2 years there is a significant difference in how to handle their termination due to UK legislation on this matter.
Termination of employment after more than 2 years of service
When staff has been employed by your business for more than 2 years you could be facing serious issues in the event of dismissing an employee without the use of the correct processes. Employers need to be very careful when handling dismissals in these cases and be certain they have followed all the correct procedures.
As an employer you should always follow the ACAS code of practice and follow the correct disciplinary and grievance procedures to ensure you do not end up at an employment tribunal for unfair dismissal.
Tribunal cases for dismissing an employee on grounds of unfair dismissal, wrongful termination and constructive dismissal happen more often than you may think
Employees know their rights and if you as an employer did not follow the correct processes you are at risk. Tribunal proceedings can be very costly and are very frustrating, especially if you could have prevented the hearing from happening with just a few simple tasks.
As an employer you need to either have a strong HR support service in place or be fully aware of the legislation and HR processes for terminating an employee, as well as ensure each step is taken and carefully documented.
Termination of employment after less than 2 years of service
If an employee has been employed by your business for less than 2 years it is much easier for UK employers to terminate their employment.
Employees can only claim unfair dismissal if they work for the same employer for 2 or more years.
There are different terms to describe employee dismissal
Unfair dismissal, constructive dismissal and wrongful dismissal can cause serious issues for you as an employer.
In order to protect employees across the UK there are many strict rules and procedures in place that employers MUST follow before dismissing a member of staff. If an employer fails to follow the correct steps the company is at risk of an employment tribunal case.
- A dismissal is fair when the dismissal is related to the employees’ conduct, capability and/or qualifications, other substantial reasons to justify the dismissal and in case of redundancies.
- A dismissal is an ‘unfair dismissal’ in the event of an employee being let go for exercising their rights in regards to maternity leave and support, family leave, representation, trade union membership, pay and working hours.
- A constructive dismissal is when the employee resigns themselves.
- For this to be a constructive dismissal the employee would resign as a result of a hostile work environment, created with the aim of forcing the employees’ resignation.
- A dismissal in breach of the employment contract is a wrongful dismissal or wrongful termination.
- For wrongful dismissal claims there is no minimum time of service. Employees can take the employer to employment tribunal at any time if the company is guilty of wrongful dismissal.
Employee tribunal cases and the aftermath of dismissing an employee for unfair or constructive dismissal
The obvious problem with going to an employee tribunal are the direct costs involved, but what about your reputation?
Your business’ reputation can be seriously harmed by tribunal cases when dismissing an employee unfairly. This will affect the brand perception of customers and potential customers. Not only will your customers and potential customers be influenced by an unfavourable reputation. Potential new employees, suppliers, and other stakeholders could also decide to back away from you in the future if your reputation is poor.
Even when the situation didn’t get completely out of hand, and you managed to let go of your employee without appearing at the tribunal, that employee still has the possibility to put a very negative marker on your brand and reputation for other potential employees.
Think of websites such as Glassdoor. There are many areas on the internet where terminated employees can vent and promote their negative experiences, and can influence others for years to come. If prospected employees think you’re in the business of dismissing employees unfairly and have a history of constructive and unfair dismissal they probably will reconsider applying.
Let’s prevent this all from happening!
Dismissing an employee without issues
By managing your dismissal, disciplinary and grievance procedure according to the ACAS code of practice during the dismissal process you will protect yourself against tribunal cases.
By offering HR best-practice solutions consistently through your internal HR team, HR manager or outsourced HR service provider, you will also be able to maintain high levels of staff satisfaction and staff loyalty as well as prevent mistakes made during the recruitment process, leaving you with mostly positive employee reviews.
The challenges when dismissing an employee
HR procedures are complex, and there are many of them. As an employer you need to understand these procedures and follow them to the letter.
As an employer you need to be really careful if you choose to hand these HR tasks out to managers or department heads as they may not have the relevant skill sets to fully understand the issues at hand.
Not only will it take inexperienced managers considerably more time to act on any HR tasks due to their limited knowledge, they are also much more likely to make mistakes, leaving you at risk.
You may not have an internal HR team, HR manager or outsourced HR service provider and you may think that in a company like yours spending money on HR processes is a bad use of your precious resources. However, you may have also realised that the money it would cost having a dedicated HR support service in place is in fact a fraction of the money it could cost you not utilising the support from HR professionals.
HR services and their benefits to employers who wish to dismiss an employee
In addition to the above benefits of managing your HR by professionals, HR also supports businesses to further prosper by:
- Improving employee performance and productivity
- Improving employee loyalty and decreasing staff turnover
- Reducing absence and its related costs
- Supporting development of skills and abilities of your staff
10 tips for dismissing an employee
- You cannot dismiss an employee for an offence others have been guilty of as well, without the same punishment. The employee could claim discrimination.
- The punishment must suit the crime. You can’t dismiss an employee for a one time – minor offence. Especially when they can prove they have continuously performed on a highly satisfactory level.
Always have your procedures and processes in writing
- Make sure all your employees have read and signed your procedures on grievances and disciplinary actions.
- Employees normally sign these procedures at the beginning of their employment.
Make sure your management team follows your set procedures to the letter
- Procedures on paper are no good if no one pays attention to them.
- Each individual in your business, most importantly your managers, need to fully understand these procedures and take them seriously.
Have a valid reason for dismissal
- You can’t just fire someone because you don’t like them. You need to have a good reason for dismissing an employee.
- In addition, you need to have proof to support that reason. If you do not have a valid reason for dismissal it will be either unfair dismissal or wrongful termination and open you up to risk.
Investigate any claims made against the employee causing the dismissal
- If the employee is being dismissed for an offence, you need to be sure that it happened.
- You have the responsibility to ensure your employees are being treated fairly. For that reason you will always need to investigate and prove allegations against employees.
Ensure you have followed your procedures on disciplinary procedures in advance of the dismissal
- As previously stated, you need to follow the ACAS code of practice on this.
- You need to ensure that your policies are correctly set up; otherwise they will prove to be useless in protecting you from employment tribunal hearings.
Always be clear and specific
- Whatever processes you follow, no matter the policy, you need to be clear.
- You always need to make sure that your staff fully understands what you expect from them. If you write your policies in an ambiguous way you are definitely going to run into some issues.
Provide swift solutions
- Don’t let issues sit and further worsen the situation. Act on grievances, disciplinaries and other staff issues swiftly to avoid further aggregation in your workplace.
- The employee awaiting disciplinary action could have a negative effect on other employees. The negative impact of a disgruntled employee will make the situation even harder to deal with.
Consider alternative options
- Is dismissing an employee the only option you have? You may want to consider alternatives such as a disciplinary procedure, or a personal improvement plan.
HR support services to protect companies against claims of unfair dismissal, constructive dismissal and wrongful termination
No matter the size of your business, you will always need to prepare to make the tough choices. You will want to be in the knowledge that you are following UK legislation. And furthermore, you want to protect yourself against any claims of unfair dismissal, constructive dismissal and wrongful termination.
HR support services are a great solution for companies who do not have an HR department. They will lack the internal knowledge, experience and time to deal with these issues and manage their HR support themselves.
Using HR consultants from PeoplePointHR will provide you with the comfort of knowing you are protected against employment claims and damage to your reputation as a result of poor people management, and will furthermore provide you with:
- Bespoke contracts of employment
- Bespoke employee handbooks including compliant grievance and disciplinary procedures
- Support onsite, by phone and by email, whenever you require
- Assistance with procedures and documentation to accurately track your disciplinary and grievance processes
Contact our HR experts today on 0330 555 2555.