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The Different Types Of Dismissal And Your Rights

By: Chris Hogan MSc - Updated: 12 Dec 2017 | comments*Discuss
 
Dismissal Unfair Dismissal Workers

There are effectively three forms of dismissal from an employer - fair, unfair and constructive - 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 has 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.

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, for example, if the employee was made aware of the seriousness of the offence, and look at the company's disciplinary procedures to see if they were up to standard and had 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. 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 claim unfair dismissal 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.

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[Add a Comment]
@M....A - you either stay on the sick until you are dismissed for being unable to work, or you leave. You have no other options.
GH - 12-Dec-17 @ 3:14 PM
I have recently had a disciplinary hearing at work which resulted in 4/5 charges being dismissed due to lack of evidence, the other I received a warning for not raising questions to prevent a situation. I’ve been off sick since then with stress as during the hearing my job was threatened indirectly, told if there was more evidence the outcome would be different as they believe there is something untoward with the 4/5 charges. I do not feel able to return but I’m unsure of the next steps.
M....A - 12-Dec-17 @ 12:56 PM
I have been signed of sick and I got a call the following week to accuse me of doing cilents which was not the case the following week same thing happened. I went and logged it at a solistors as they have done this before to other people that worked there.I handed another sicknote in and recorded it on phone and took pictures . I have since found out the social services have been in as someone reported them and I have been accused of doing it. It got to pay day and no money not reply from company what so ever called HMRC up they put everything through and they was with holding my pay after 5 days HMRC got hold of he manager who then said I ch aged my bank details which is a lie and that they have been trying to get hold of me all lies because after he abusive calls I got I started to record all phone calls from them. He also said to them They terminated my employment on the 25 November.They said They have sent a cheque out which I got today with a note to say I have breeched the contract and I have done cilents privately which I have not !! I have since found out they ripped up my new sick note and said I won't get anymore money out of them and I can go do one for my hoilday pay . They have told people why I was off sick including cilents and staff.
Caz - 9-Dec-17 @ 6:02 PM
@JC - can't you claim statutory sick pay?
Sylvie - 5-Dec-17 @ 11:21 AM
@Bdm - it depends if it was a conflict of interests with the employer she is currrently working for. No employer is going to like it if you buy stuff from them and sell it on.
JillN - 4-Dec-17 @ 10:25 AM
My friend has just been sacked for selling goods on ebay which she had previously bought from the store she worked at, surely this cannot be rightthey were her property to do as she wanted with.
Bdm - 3-Dec-17 @ 10:35 AM
Sadie - Your Question:
I've been on sick leave from my company since 16th October states on contract I'm entitled to SSP handed in sicknote which was apparently was lost by the manager only found out 3wks later so handed in a duplicate still to date I've received no SSP is this unlawful to withhold SSP I'm also in a abusive relationship and I've been absent from work due to this now I'm being called in for Disciplinary Meeting what advice can I get

Our Response:
If you don’t think you’re getting the right amount of SSP, talk to your employer. If you’re still not happy, contact the HM Revenue and Customs (HMRC) enquiry line, please see link here .
WorkingRights - 30-Nov-17 @ 10:27 AM
I've been on sick leave from my company since 16th October states on contract I'm entitled to SSP handed in sicknote which was apparently was lost by the manager only found out 3wks later so handed in a duplicate still to date I've received no SSP is this unlawful to withhold SSP I'm also in a abusive relationship and I've been absent from work due to this now I'm being called in for Disciplinary Meeting what advice can I get
Sadie - 29-Nov-17 @ 12:30 PM
I've been threatened with a disciplinary if I miss to do a pay back shift with less than one month notice. Payback shift that we weren't aware of.
Me - 28-Nov-17 @ 8:28 PM
I have been sacked for gross misconduct whilst off sick with stress. There is going to be a long drawnout investigation, can I claim any sort if sickness benefit whilst still sick?
JC - 28-Nov-17 @ 4:17 PM
parent - Your Question:
My son has been dismissed for gross misconduct, he has Aspergers and found the whole thing really stressful, he is accused of eating waste pizza topping from the counter, he admitted he did this, it was a subconscious act and once spoken to he stopped. the amount he took was very small and he hadn't realised it was significant or amounted to theft as it was waste. he has worked for the company for 5 years and never had any concerns raised previously. he wasnt given a written warning or verbal warning just dismissed being told theft is theft, is this fair? is it worth appealing?

Our Response:
In this case, you may wish to give ACAS a call to see whether your son has grounds to appeal.
WorkingRights - 28-Nov-17 @ 3:56 PM
my son has been dismissed for gross misconduct, he has Aspergers and found the whole thing really stressful, he is accused of eating waste pizza topping from the counter, he admitted he did this, it was a subconscious act and once spoken to he stopped. the amount he took was very small and he hadn't realised it was significant or amounted to theft as it was waste. he has worked for the company for 5 years and never had any concerns raised previously. he wasnt given a written warning or verbal warning just dismissed being told theft is theft, is this fair? is it worth appealing? .
parent - 28-Nov-17 @ 8:54 AM
I have a disciplinary meeting tomorrow for committing a gross misconduct offence, didn't know it was a gross misconduct offence but I've admitted my mistake. What I'm concerned about is apparently a few colleagues have been told I'm getting sacked before my meeting has even taken place surely this is wrong??
Ally - 24-Nov-17 @ 2:54 PM
I was dismissed from my employment yesterday. They state it was for not hitting sales targets which my job description is for accounts administration and I was never given a sales target. I thought I was doing well in my job nothing has been raised before and I went to the meeting with the understanding it was a review and I was instantly dismissed with insufficient notice as outlined in my contract. I have no paperwork to say I’m dismissed and I have been part of the small business for 14 months. What can I do ? And what information do I need to get from them ? Thank you in advance for any help it’s much appreciated
Shel - 24-Nov-17 @ 9:15 AM
A carer and my mum and dad's care home attended a resident who needed the toilet. To do this they need to have the support of two people to use stand aid. The carer looked for her agency support worker but could not find them. The resident by this time was concerned that they were going to have an accident and was desperate to get to the toilet. The carer wanted to kep the dignity of the resident in place so they supported them on to the stand aid themselves. The agency support worker was in a room filling in notes. The carer concerned was suspended and then sacked without any investigation. They have been a carer for 7 years and never breached the regulations
Alsisa - 18-Nov-17 @ 7:40 AM
I was dimmissed from my job last week because a co worker had printed off a txt conversation where I had used a swear word about a manager however when I was investigated they just provided the txt message no statements to support why the staff member did it I've appealed and have my meeting tomorrow if the company stands by their decision would I have a case to take to a work tribunal I have worked for the company over 2years and was a departmental manager myself
Sam - 14-Nov-17 @ 3:45 PM
funo - Your Question:
Hi please help I went to hearing on the 10 October 2017,on the 11 October 2017 next day I was given new contract that's start at new site not at the side I went for hearing on the 16 October 2017 I was told my employment at the first contract was terminated but I still have the new contract that I signed on the 11 October 2017 that state other side but only to find out they ignoring the second contract they sucking me out of company unrespectable of new contract I just signed after my hearing

Our Response:
You would have to speak to your employer directly about this.
WorkingRights - 9-Nov-17 @ 11:42 AM
Hi please help I went to hearing on the 10 October 2017,on the 11 October 2017 next day I was given new contract that's start at new site not at the side I went for hearing on the 16 October 2017 I was told my employment at the first contract was terminated but I still have the new contract that I signed on the 11 October 2017 that state other side but only to find out they ignoring the second contract they sucking me out of company unrespectable of new contract I just signed after my hearing
funo - 8-Nov-17 @ 10:43 AM
Twink - Your Question:
Hi so I've been working for premier inn as a housekeeper for a yr and half and nearly a yr ago was diagnosed with fibromyalgia and signed a new contract in jan and my manager was well aware of my illness so sat I went to work and started flaring and was in pain I finished my shift and went to speak to the manager to see if I could have the Sunday of to rest as I knew my pain would get worse to be told to come in and just help out and if I wasn't up to it to go home early so Sunday went in for the head housekeeper to give me justv2 rooms less than the others and a full shift to do by this time I'm in agony I told her I couldn't do it because of my fibro to be told they are busy to which my reply was you can fkin do the rooms I'm going home I'm ill ! And walked out I've been to my doc today who has signed me off sick for 3 wks and the stress is just making my condition worse then the manager has phoned and said I could be done with misconduct for walking out ?how is that fair when they know I was unwell and was informed the day before what should I do

Our Response:
You can be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job. However, before taking any action, your employer should: look for ways to support you - eg considering whether the job itself is making you sick and needs changing give you reasonable time to recover from your illness. You can see more regarding your rights via the CAB link here. However, the fact you have been in your job less than two years means your employer also has certain rights to dismiss you and it makes it more difficult for you to complain.
WorkingRights - 7-Nov-17 @ 9:50 AM
Hi so I've been working for premier inn as a housekeeper for a yr and half and nearly a yr ago was diagnosed with fibromyalgia and signed a new contract in jan and my manager was well aware of my illness so sat i went to work and started flaring and was in pain I finished my shift and went to speak to the manager to see if I could have the Sunday of to rest as I knew my pain would get worse to be told to come in and just help out and if I wasn't up to it to go home early so Sunday went in for the head housekeeper to give me justv2 rooms less than the others and a full shift to do by this time I'm in agony I told her I couldn't do it because of my fibro to be told they are busy to which my reply was you can fkin do the rooms I'm going home I'm ill ! And walked out I've been to my doc today who has signed me off sick for 3 wks and the stress is just making my condition worse then the manager has phoned and said I could be done with misconduct for walking out ?how is that fair when they know i was unwell and was informed the day beforewhat should I do
Twink - 6-Nov-17 @ 4:34 PM
After working my socks off for 10 months as a domestic cleaner, all I seem to be doing is covering other staff holidays or sickness. I've been struggling to get to work on time for the past week due to my car off the road. I asked for 1 day off to get it sorted out and was told no. I insisted as i could not cope with the stress of it all so now I have been dismissed with immediate effect. I've never been off sick and I couldn't book holiday as there were no spaces for another month. It's only a small business of about 12 employees and in the 10 months I've worked there, not a day has gone by where one of them haven't been off sick or on holiday. Yet I've never had either! It clearly doesn't pay to be honest, I should have just phoned in sick. I've had no written warning or opportunity to talk about this. So because I've only been there 10 months my employer is legally allowed to treat me like this?
Gunshot750 - 4-Nov-17 @ 6:06 PM
Selver- Your Question:
Hi there I have just been suspended from my job at npower. A girl I had a fling with at work has made a false accusation against me and her witness to this accusation is her sister in law who lives under the same roof. I explained to my manager that I told this girl can't go on with the fling anymore and after doing this the girl has continuously tried to trip me up at work. my manager didn't even want to listen to my side of the story and suspended me on the spot. can you please give me some advice on what I can do.

Our Response:
You may be suspended if allegations of misconduct have been made against you. You shouldn't see suspension as a punishment, or that you are guilty. The aim is to allow your employer time to investigate the allegations. You can see more via the WorkSmart link here regarding your options. You also may wish to seek advice via ACAS, or your union rep if you have one.
WorkingRights - 3-Nov-17 @ 10:05 AM
richie - Your Question:
My employeer calledme into the office showed me an email I had sent to the accounts stating I had asked him several times about a invoice with no response, and accused me of not wanting to complete a job on a weekend as I hadent oredered the equipment even though I had spoken to the rep and the equipment was not in stock and I am not qualified to install it, so he said he couldnt afford to pay me any more and I had to go, I have had no contact with them this was over a week ago, no letter setting out what im entiteled to or anything, I have had no warnings or disciplinery letters, are they acting legally

Our Response:
You don't say whether you are employed via PAYE, or self-employed, or how long you have been in the employment, all of which will make a difference to your rights. This means without this information, we cannot advise. You can see more about dismissal via the link here which I hope helps answer your question. Otherwise, you may wish to give ACAS a call.
WorkingRights - 3-Nov-17 @ 9:22 AM
hi there i have just been suspended from my job at npower. A girl i had a fling with at work has made a false accusation against me and her witness to this accusation is her sister in law who lives under the same roof. i explained to my manager that i told this girl can't go on with the fling anymore and after doing this the girl has continuously tried to trip me up at work. my manager didn't even want to listen to my side of the story and suspended me on the spot. can you please give me some advice on what i can do.
Selver - 2-Nov-17 @ 1:38 PM
Jay - Your Question:
Hi wandering if you can help me, I've just been sacked from my job, had a avit of an argument with my boss, when I say argument it was my boss screaming an swearing at me, the argument must of lasted no more than 4/5 minutes, during this argument I never raised my voice or swore once, I was doing a specific job when the argument arose, I've worked in this job for 4 years now an that's the first argument Ive ever had with my boss, Ive had 1 verbal warning before about attendance which has drastically improved since, he notified me of the verbal warning by letter which stated it was a verbal warning, but apart from this warning Ive had nothing else. I think I've been treated unfairly any advice.

Our Response:
Dismissal is when your employer ends your employment - they don’t always have to give you notice. If you’re dismissed, your employer must show they’ve a valid reason that they can justify and they have acted reasonably in the circumstances, please see link here.
WorkingRights - 2-Nov-17 @ 10:38 AM
My employeer calledme into the office showed me an email I had sent to the accounts stating I had asked him several times about a invoice with no response, and accused me of not wanting to complete a job on a weekend as i hadent oredered the equipment even though i had spoken to the rep and the equipment was not in stock and i am not qualified to install it, so he said he couldnt afford to pay me any more and i had to go, I have had no contact with them this was over a week ago, no letter setting out what im entiteled to or anything, I have had no warnings or disciplinery letters, are they acting legally
richie - 2-Nov-17 @ 8:42 AM
Hi wandering if you can help me, I've just been sacked from my job, had a avit of an argument with my boss, when I say argument it was my boss screaming an swearing at me, the argument must of lasted no more than 4/5 minutes, during this argument I never raised my voice or swore once, I was doing a specific job when the argument arose, I've worked in this job for 4 years now an that's the first argument Ive ever had with my boss, Ive had 1verbal warning before about attendance which has drastically improved since, he notified me of the verbal warning by letter which stated it was a verbal warning,but apart from this warning Ive had nothing else. I think I've been treated unfairly any advice.
Jay - 1-Nov-17 @ 3:40 PM
Mand - Your Question:
My boss has just threatened to sack me over an argument I had with another member of staff unless I apologise to her. The other member of staff is his ex and a trustee of the charity. I have worked there for over a year now although none of us who work there have a contract. Can he do this?

Our Response:
Yes, your employer can do this. If you’re dismissed, your employer must show they’ve: a valid reason that they can justify and they acted reasonably in the circumstances, please see link here. You also have fewer rights as you cannot take your employer to an employment tribunal if you have been employed for less than two years. However, you should have a contract and all employers must give employees a ‘written statement of employment particulars’ if their employment contract lasts at least a month or more. You may wish to raise this with your employer directly.
WorkingRights - 31-Oct-17 @ 10:45 AM
My boss has just threatened to sack me over an argument I had with another member of staff unless I apologise to her. The other member of staff is his ex and a trustee of the charity.I have worked there for over a year now although none of us who work there have a contract. Can he do this?
Mand - 30-Oct-17 @ 4:05 PM
A friend of mine has just been sacked gross misconduct for allegedly making a homophobic comment during a phone conversation with his supervisor he has denied doing this during his disciplinary hearing however he has lost his job as they say it was two words against one. He has 19 years previous service with a good work record. Any advice as this seems harsh.
Jasper - 25-Oct-17 @ 9:06 PM
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