The Different Types Of Dismissal And Your Rights

There are effectively three forms of dismissal from an employer; fair, unfair and constructive, and as the Constructive Dismissal article in this section covers constructive dismissal, this article will tackle unfair or justified dismissal. For a employer to dismiss an employee justifiably there are two basic scenarios. Either the employee has been consistently under performing and been through a disciplinary procedure, which has failed to resolve the problem, or they have committed an offence that is listed in their terms and conditions of employment as an instantly sackable offence.

Dismissal For Misconduct

The various offences that might cause disciplinary and dismissal procedures to be instigated by a business against an employee are grouped together under the term 'misconduct'. There's no finite definition of misconduct and a lot depends on the nature of the employer and its culture as to what constitutes misconduct. Generally it is either about the way an employee conducts themselves or their ability to do their job and includes:

• Persistent poor time-keeping and absenteeism
• Dishonesty
• Rudeness to colleagues and/or customers
• Poor discipline
• Inability to keep up with work
• Long-term absence or sickness

In these cases a full disciplinary procedure must be followed before dismissal, although the aim of the procedure must be to reverse the problem and get an employee back on the job, with dismissal a last resort at the end. The procedure will usually entail a series of verbal and written warnings from the employer, more details of which can be found in our Disciplinary Procedures article in the Working Conditions section.

Justifiable Dismissal

In every employee's contract, or a separate document referred to by the contract such as a staff handbook or set of terms and conditions, there will be a list of offences that will result in instant dismissal. These are termed 'gross misconduct' and are usually fairly obvious, such as:

• Stealing, embezzling, or sabotage against the employer
• Criminal acts not aimed at the employer but performed on their premises
• Violence toward another employee or general violent conduct at the business
• Drug or alcohol related incidents
• Indecent behaviour
• Serious health and safety breaches at the business

Most well-written company procedures will make it clear that the list is not exhaustive and that other acts not can also be deemed gross misconduct and cause for dismissal.

There may be more entries on the list of gross misconduct offences depending on the nature of the business. For example, in an increasing number of businesses, financial institutions in particular, some IT-related incidents such as divulging a password or installing software on a PC count as gross misconduct. This is spreading to other industries as the risk of computer crime and virus damage increases.

Committing a gross misconduct offence does not mean that the dismissal is 'instant' in the sense of being frog-marched immediately out of the building. Even in these cases a procedure must be followed, which normally includes the employer investigating the offence to make sure that it did actually occur and that the right person has been identified. Employees may be suspended while this takes place and, as part of their workers' rights, must be given a chance to defend themselves, with an accompanying staff member or union representative.

What Unfair Dismissal Means

The problem with fair and unfair dismissal is that the employer and employee often disagree as to whether a dismissal is fair or unfair. The only way of sorting this out is for the dismissed worker to take the company to an Employment Tribunal, who will investigate and decide the matter.

A tribunal will consider whether or not the offence counted as gross misconduct, were employees made aware of the seriousness of the offence, for example, and look at the company's disciplinary procedures to see if they were up to standard and he been properly implemented. Although they will not look at the issue of guilt or innocence of the employee, they would assess the employer's investigation that took place and determine whether or not it was conducted properly, and in an unbiased manner. They would also assess whether dismissal was the right thing for the business to do, rather than an alternative solution and might look at past similar cases for precedents that have been set.

Get Advice Before Committing About Dismissal

People who feel they should go claim unfair dismissal absolutely must get independent advice before progressing. Union members can call on the union for support and advice, and if they believe the unfair dismissal claim to be a valid one, will provide free legal support before and at the tribunal hearing. Those who aren't can call on the Citizens Advice Bureau (CAB) or ACAS, the Advisory, Conciliation and Arbitration Service, both of which can be easily found through a phone book, local library or the internet.