Definition of dismissal
Dismissal is when your employment is ended by your employer.
Procedures for dismissal
The Acas Code of Practice on Disciplinary and Grievance Procedures sets out guidance on the disciplinary process as a minimum standard to be followed by employers. The code advocates that employers should have disciplinary procedures in place and follow these if they dismiss employees. If the dismissal relates to a disciplinary reason they must follow a disciplinary procedure.
The Northern Ireland equivalent Code of Practice is prepared by the Labour Relations Agency and is broadly similar to that of Acas, save for the significant difference of the requirement on employers to comply with the Statutory Disciplinary and Dismissal Procedure.
In Northern Ireland, the SDDP must be followed or else the dismissal will be automatically unfair. This is a three-step process:
Step 1 requires the employer to set out, in writing, to the employee, the reasons why dismissal or disciplinary action against the employee is being contemplated. This statement must be sent to the employee inviting them to attend a meeting to discuss the matter.
The Step 2 meeting must take place before any disciplinary action is taken and only after the employer has explained to the employee the basis of the statement given under Step 1 and the employee has had a reasonable opportunity to consider their response. The employee must take all reasonable steps to attend the meeting. After the meeting, the employer must inform the employee of the decision and advise the employee of the right to appeal.
Step 3 occurs where the employee advises the employer that they wish to appeal. The employer must then invite the employee to another meeting which the employee must take all reasonable steps to attend. The appeal meeting need not take place before the dismissal or disciplinary action takes effect. After the appeal, the employer must inform the employee of the final decision.
Fair reasons for dismissal
Your employer must have a fair reason for dismissing you. Fair reasons for dismissal can include:
- behaviour that is a serious act of misconduct and breaches the terms of your contract, such as theft, fighting with colleagues or abusing alcohol;
- inability to do your job because you do not have the skills;
- you break a law in a way that brings your employer into disrepute or interferes with your work (for example, if you are sent to prison);
- the end of a fixed-term contract.
In order to file a claim for (constructive) unfair dismissal, you would need to show that your employer has committed a serious breach of contract which, in effect, ended the contract. The contract is ended when the employee resigns in response to the employer’s serious breach of contract.
This is a very serious step to take and we would never advise anyone to resign without first seeking specific advice on their particular situation from a UNISON rep.
Examples of behaviour that might form the basis of a constructive dismissal can include:
- not being paid;
- being forced to accept unreasonable changes to your job that are not specified in your contract;
- working in dangerous conditions.
If you are affected by an intolerable workplace situation and you might be thinking of resigning, you should speak to a UNISON rep without delay, and always before taking such action.
You should try to see if speaking to your manager or the Human Resources (HR) Department might resolve the issue. Your UNISON rep can help you to prepare for these conversations and may even be able to attend with you.
You should also review your organisation’s grievance procedure as this might give you further guidance.
You can also contact the Acas helpline (08457 474 747) for confidential advice.
A dismissal can be called unfair because:
- the reason for dismissal is unfair;
- the dismissal procedure followed was inappropriate or unreasonable;
- in Northern Ireland only, there has been a breach of the SDDP.
In the vast majority of cases, only employees who have been employed for two years or more can bring claims for unfair dismissal. In Northern Ireland this is one year. Additionally, if you have been employed continuously at the same organisation for at least two years, you have the right to ask your employer to give you the reason(s) for your dismissal in writing within 14 days of you asking, if they have not done so.
Both redundancy and retirement decisions can be considered as unfair dismissals if your employer has not followed an appropriate procedure, which can involve looking at the reasons why it took the decision to retire you or make you redundant.
Automatically unfair reasons for dismissal
There are some reasons for dismissal that are automatically unfair, some of the most typical examples are dismissals that occur because:
- of your race, gender, sexual orientation (this applies In Great Britain, but not Northern Ireland) or any of the other protected characteristics under the equality laws (you may have other claims as well);
- you are pregnant (you may have other claims as well);
- you try to assert your employment rights;
- you belong to a trade union or take part in lawful industrial action that lasts less than 12 weeks;
- in Northern Ireland only, a breach of the SDDP.
If you feel you have been unfairly dismissed, you should speak to your UNISON rep without delay.
Your UNISON rep will be able to explore with you what options are available, which will include providing you with advice on what would be involved in making a complaint to an employment tribunal.
- Dismissal is when your employer acts in a way to end your employment.
- The Acas Code sets out the minimum standard procedures an employer should follow to dismiss.
- A year’s service is normally required to bring a claim for unfair dismissal in the employment tribunal.
- In most cases your employer will dismiss you on notice, or on giving you a payment in lieu of notice.
- A dismissal can be rendered an unfair dismissal on the basis of either the reason for dismissal, or the process followed.
Can I be dismissed if I lose my driving licence?
Yes. If your job involves driving then it would be unlawful for your employer to continue employing you in that position and they can dismiss you lawfully. However, it would be reasonable for an employer to consider whether it could retain you in a role that did not require you to drive, before it took the decision to dismiss.
Can I be dismissed instantly?
There are some situations when you can be dismissed instantly, without following formal procedures (and often without a payment of notice). For example, if you are guilty of gross misconduct or posing a threat to your employer, your employer’s property or your colleagues, you can be dismissed instantly
How much notice must my employer give me?
Your contract will normally state the amount of notice that your employer must give you (or you must give your employer if you end the contract). There are statutory minimum notice periods that must be given by law (the employer is open to give longer periods of notice if it wishes):
if you have worked for your employer for between one month and two years – one week’s notice;
if you have worked for your employer for more than two years – one week’s notice for every year that you have worked (maximum 12 weeks for working 12 years or more).
Can I be dismissed if I become ill?
You can be dismissed if you develop a long-term illness but your employer has to follow an appropriate procedure and act on medical advice it receives about your condition. The circumstances will vary as to what is reasonable, depending on the nature of the illness and whether you are expected to recover.