Dismissal templates toolkit

• In addition to termination by the employer, there will be a dismissal where the employee resigns in response to a fundamental breach by the employer (constructive dismissal).

• Dismissing in breach of contract will give rise to a claim for wrongful dismissal. Typically, wrongful dismissal claims concern a dismissal with inadequate notice.

• Employees who have worked for more than one month are entitled to statutory minimum notice.

• A payment in lieu of notice (PILON) clause allows an employer to terminate an employee without notice and make a payment in lieu without violating the terms of the contract.

• Employees with sufficient qualifying service can file unfair dismissal claims. Employees with less than 2 years service won't have been employed long enough to qualify for unfair dismissal protection. However, they are still protected against harassment and dismissal for 'protected reasons' such as gender, age, ethnicity, disability, religion and cultural background.

• A dismissal will be considered unfair if it is not for a just cause and/or the employer acted unreasonably in deeming the reason sufficient.

• Capability, conduct, redundancy, statutory illegality, and some other substantial reason are the five legitimate reasons for dismissal.

• When the dismissal is for one of the automatically unfair grounds, no qualifying service is necessary to initiate an unfair dismissal claim.

• If an employee is dismissed without following the ACAS Code of Conduct: Disciplinary and Grievance Procedures, the dismissal may be deemed unfair, and any compensation given may be enhanced by up to 25%.

• Unfair dismissal compensation can be comprised of both a basic payment (based on age, income, and years of service) and a compensating award for losses.

• Following a successful claim for unfair dismissal, tribunals have the authority to impose reinstatement or re-engagement.

Navigating Dismissal processes correctly is crucial to help you avoid any problems (which can be costly in terms of time, money and reputation).

Recent UK case law has highlighted key aspects of good Dismissal management. Knowing how courts have handled claims can help you assess whether your proposed actions are likely to be seen as reasonable.

Here are some notable rulings and their implications:

• Kong v Gulf International Bank (2023):

  Facts: This case involved Ms. Kong, who raised concerns about a legal agreement and was subsequently dismissed for her conduct towards the Head of Legal.

  Outcome: The Employment Appeal Tribunal (EAT) upheld that the dismissal was based on her conduct, not her protected disclosures under whistleblowing legislation.

  Key takeaway: The decision clarified that the motivations of individuals other than the decision-maker only matter if they actively sought the employee’s dismissal for an unfair reason and hid it from the decision-maker.

• Royal Mail Group Ltd v Jhuti (2019):

  Outcome: This Supreme Court decision established that if a manager hides the real reason for dismissal behind an invented one, the tribunal must consider the hidden motive.

  Key takeaway: This case set a precedent that the tribunal must look beyond the immediate reasons provided by the decision-maker if there is manipulation by someone in a position of authority over the dismissed employee.

• Driscoll v Varela (2020):

  Facts: Ms. Driscoll resigned due to alleged harassment by the Chief Executive, claiming constructive dismissal and harassment.

  Outcome: Initially, her claim was struck out, but on appeal, the EAT ruled that constructive dismissal could constitute an act of harassment.

  Key takeaway: This decision allows employees with less than two years’ service to bring a claim if they resign due to harassment, which can lead to uncapped compensation if proven.

• Evergreen Timber Frames Ltd v Harries (2023):

  Facts: This case involved a dismissal due to health-related performance issues.

  Outcome: The tribunal found that the employer failed to follow a fair procedure, including adequate consultation and exploration of alternative roles.

  Key takeaway: The dismissal was deemed unfair because the company did not sufficiently consider the employee’s health condition and potential reasonable adjustments.

• Phoenix Academy Trust v Kilpatrick (2021):

  Facts: The case focused on the proper procedure for disciplinary dismissals.

  Outcome: The tribunal held that the employer’s failure to conduct a thorough investigation and provide the employee with an opportunity to respond to all allegations led to an unfair dismissal ruling.

  Key takeaway: This case reinforces the importance of following procedural fairness in disciplinary actions.