A dismissal, most commonly known as firing or sacking, is when an employer removes an employee or terminates his employment. Depending on the reasons for the removal of an employee, dismissals can be categorised broadly into two categories:
- Fair Dismissal
- Unfair Dismissal
What if, the Dismissal is Fair?
For a dismissal to be fair, it must follow a fair procedure as laid down by the Advisory, Conciliation and Arbitration Services (ACAS) Code of Practice on Disciplinary and Grievance Procedures. The employer must have a valid reason for the removal of the employee. He cannot be dismissed arbitrarily.
When an employer dismisses an employee, they should provide him with a notice of when his job will end. In a case where such a notice has not been presented, it amounts to wrongful dismissal.
Dealing with Unfair Dismissal from the Job
Unfair dismissal, on the other hand, is the one where the employer dismisses the employee without any reasonable ground or fails to follow a fair dismissal procedure. The dismissal is unfair when the employer cannot show that the dismissal is for one of these five grounds, which the law recognizes as fair. These are:
- Lack of Capability: If the employee lacks the capability to do the job or ceases to possess that capability, the employer can terminate his employment, provided the employer is sure that the job cannot be carried out by the employee anymore. The reasons for such inability can be both physical and performance-related.
- Statutory restriction or Illegality: Where the continued employment of an employee would be illegal, such a dismissal will be fair. For example, the dismissal of a person whose permission to work in a state has expired will be based on fairgrounds.
- Misconduct: Misconduct is a fairground of dismissal, especially continued instances of misconduct.
- Redundancy: Where a role or position is no longer required, and the employee cannot be hired in a suitable alternative position, and he can be dismissed.
- Any other Substantial Reason: This category of dismissal is wide enough to cover any other reasonable ground that doesn’t fit within other categories. However, the dismissal of an employee under this ground requires proper evidence that the dismissal is fair.
Appropriate Actions Against Unfair Dismissal
If the dismissed employee believes that he has been dismissed for reasons not falling in the aforementioned categories or is dismissed unfairly, he can adopt the following recourses:
- Departmental Appeal: The employee can challenge the dismissal through their employer’s appeal process. Most of the departments provide for interdepartmental appeals and inquiries. This remedy, where provided, should be exhausted first before moving to the bigger forums for remedy.
- Third-Party Help: The employee can take help from a third party to resolve the contention through the means of arbitration, conciliation or mediation. Trade Unions can also be involved to take up the grievance and provide redress.
- ACAS help: If the employee is having a dispute with the employer or just wants to challenge the dismissal, the dispute can be taken to the ACAS, which will try to offer a solution both the parties can agree on. However, if the dispute is not resolved and both the parties cannot reach an agreement, the ACAS will provide the employee with the certificate enabling him to take up the claim at the Employment Tribunal.
- Employment Tribunals: If the dispute cannot be solved amicably, the employee can have redress through the employment tribunal. The right to bring a claim for unfair dismissal in the tribunal has a qualification period. Only an employee who has worked at least two years before his dismissal from his employer can go to the tribunal with such a claim.
A claim for unfair dismissal must be made to the tribunal within three months of being dismissed. However, submission of details of the claim to ACAS is a prerequisite to presenting a claim in the tribunal. Only when the ACAS conciliation fails will the parties be allowed to present their claim at the tribunal.
An employee who has been successful in proving his claim for unfair dismissal will generally be awarded compensation and a monetary award. This award is ‘such amount as the tribunal considers just and equitable in all the circumstances keeping in regard to the employee’s loss caused by the employer’s unfair dismissal. This award will generally be consisting of:
- The Basic Award, which is calculated keeping into account the age and length of service of the employee
- Compensatory Award, which is intended to restitute the employee financially to a position he would have been in if he were not dismissed unfairly
However, if the employee has played a contributory part in the dismissal, the tribunal may reduce the compensation.
The tribunal can also order the reinstatement or re-engagement of the dismissed employee. However, such orders are very rarely made and are not a common remedy.
