Dismissal

by Kate Russell

Common questions

  1. What makes a dismissal unfair?
  2. What is meant by constructive dismissal?
  3. Is it fair to dismiss an employee who is sick?
  4. What are the rules if an employee is long-term sick?
  5. If an employee is dismissed, is he entitled to any statutory holiday pay?
  6. What is wrongful dismissal?
  7. What is summary dismissal?

 

1. What makes a dismissal unfair?

If an employer dismisses for an unfair reason, if he has failed to follow his procedure or if dismissal is a disproportionate sanction in the circumstances, then the dismissal is likely to be unfair.

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2. What is meant by constructive dismissal?

Where an employee has been subjected to a fundamental breach of contract by the employer, there is a right to resign from employment and claim compensation on the grounds of constructive dismissal.

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3. Is it fair to dismiss an employee who is sick?

Yes. If an employee takes persistent short-term absences, but there is no underlying medical condition, it will be fair to dismiss on grounds of conduct or some other substantial reason (SOSR).

If there is an underlying medical condition, the employer may dismiss on grounds of capability.

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4. What are the rules if an employee has an underlying medical condition or is long-term sick?

In order for a dismissal to be fair, the employer must normally go through the following procedures.

  • He must fully investigate all the circumstances of the case.
  • He must obtain up-to-date medical evidence (if the employee refuses to attend for a medical examination this may result in dismissal on reasonable grounds).
  • The employee must be given an opportunity to challenge an employer’s medical report

If there is suitable alternative employment, this should usually be offered, although the employer is not under a duty to create a job for the employee.

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5. If an employee is dismissed is he entitled to any statutory holiday pay?

The employee is entitled to accrued statutory holiday pay.

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6. What is wrongful dismissal?

Wrongful dismissal is dismissal in breach of contract.

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7. What is summary dismissal?

Summary dismissal is dismissal without notice for gross misconduct. The employer will have fulfilled all the procedural requirements before taking any action to dismiss.

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