A dismissal will be automatically unfair if it is for one of a number of prescribed reasons, including, but not limited to:
• health and safety activities
Non-automatic potentially unfair dismissals
The burden will be on the employer to establish that the dismissal is fair and potentially fair reasons include but are not limited to:
• The conduct of the employee
• Capability including ability, sickness or other long-term absence
• Some other substantial reason which is a “catch all” final line of defence available to the employer
Employers need to be aware of the grounds that they are able to treat as a disciplinary offense for dismissal, and whether or not those grounds in themselves amount to gross misconduct.
Regardless of putting a label on whether a dismissal is based on capability or conduct or some other reason, an employer will generally avoid a finding of unfair dismissal if the decision to dismiss is within a range of reasonable responses which is the legal test. This range can cover actions by the employer which are possibly harsh.
However, employers must also comply with procedural fairness and this is where many employers make mistakes, act rashly or do not follow their own employment contract procedures or good employment law process such as is recommended by ACAS.
Generally, common sense suggests that it will not be within the range of reasonable responses to dismiss for a first offence which is not gross misconduct. In those circumstances, such as poor performance, perhaps being late for work on several occasions or unauthorised absence, the employee should be entitled firstly to a written warning, thereafter a period of time to improve performance and/or behaviour before a second written warning and then perhaps dismissal if there is a further repeat provided. However, there are circumstances where the employee acts so badly that summary dismissal is appropriate.
There is no hard and fast rule as to what behaviour amounts to gross misconduct, generally speaking it is conduct which is so serious as to destroy the employment relationship.
However bad the conduct may be the employer must still go through the correct process, must investigate, have a for disciplinary hearing, allow an appeal and so on.
What might constitute gross misconduct ?
Potential examples of gross misconduct include :-
• Serious bullying or harassment;
• Physical violence;
• Theft, fraud or fortification;
• Damage to property;
• Serious insubordination;
• Serious breach of companies internal policies;
• Serious misuse of email / internet access;
• Working whilst incapacitated and/or drugs;
• Negligence which causes/might cause unacceptable loss to the employer;
• Serious breach of health and safety rules;
It is for the employer to judge whether such behaviour falls into these categories but the conduct must be such that the employment contract cannot continue. The employer must be confident of this before proceeding with a gross misconduct charge.
Be consistent – how have you dealt with other employees in similar circumstances?
As with any potential issue of unfair dismissal, procedure is very important. Failing to comply with fair or adequate procedure can result in a finding of unfair dismissal even if the underlying reason for dismissal was fair.
Once the employer reaches the conclusion that dismissal may be necessary, the following are the minimum required in procedural terms :-
• arrange a meeting with the employee on appropriate written notice and explaining the position and that dismissal is a possibility
• the employee must be notified of his or her right to be accompanied at the meeting by a Union rep or work colleague
• the employee should be given the opportunity to put his or her views forward at the meeting
Any decision to dismiss should be carefully considered after the meeting, communicated to the employee and if the decision is to dismiss, the employee should be informed of his or he right to appeal.
Wrongful dismissal is different from unfair dismissal but claims may be available for both.
Wrongful dismissal claims are based on breach of contract and :-
One of the most difficult issues for employers is dealing with long term sickness absence. Of course this is difficult for the employee also but in many respects, the employer is almost “walking a tightrope” in trying to balance it’s legitimate need to run a business, to know what is going on, as against the employee perhaps feeling that the employer is snooping on them, doesn’t believe they are sick, or looking for a way to justify dismissal.
This is, in our experience, a particularly common issue with larger employers who have an HR team and who, for example, may use
The general legal position
An employer is entitled to ultimately dismiss, fairly, an employee who is absent due to long term sickness, but the employer needs to be able to demonstrate they have acted sensitively, fairly, to have consulted with the employee and considered all available alternatives to dismissal. Procedure is also important.
The ultimate decision to dismiss needs to be founded on a conclusion, based on factors which almost certainly must include medical evidence, that the employee is unlikely to be able to return to work within a reasonable time.
Such a conclusion will involve different factors for different types and sizes of employers and relevant considerations may include :-
• the type of job
• the employer’s size and resources
• the length of absence thus far
• how have other situations been dealt with historically
• does the employee have a disability and if so, have reasonable adjustments been considered
• are there any alternatives to dismissal
An employer needs to ensure that it stays in contact with the employee during the period of absence. Too much or intrusive contact can create issues, and this is a difficult balance. The employee should be offered all available assistance and as the absence continues, should be asked to co-operate in allowing the employer to have information from the employee’s doctor. This needs to be dealt with very carefully and sensitively also (legal advice is strongly recommended)