Fair v unfair dismissal: the differences

Whether you’re asked to leave the company or you’re being made redundant unexpectedly, losing a job is difficult and can have a huge emotional impact. However, the dismissal procedure can be fair or, unfortunately for the employee, unfair. A so-called ‘fair’ dismissal is based upon conduct, performance, timekeeping and capability, within the company and there are occasions when the company can rightly dismiss the employee if they breach the rules. ‘Unfair’ dismissal can be more complicated and it can involve, for example, an employee being dismissed because they are pregnant.

What is fair dismissal?

Fair dismissal can be based upon minor misdemeanours such as poor timekeeping to more serious issues such as attitude towards work, lack of professionalism and misconduct outside the workplace. Very often, issues such as poor timekeeping can be dealt with and corrected at an informal meeting, so it’s unusual to find an employee who has been terminated on a timekeeping issue alone. Companies will deem incidents such as theft to be serious and these issues are regarded as gross misconduct. An employee can be dismissed from the firm immediately without notice.

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Can capability and performance be taken into account?

There may be occasions when an employee’s physical and mental health has deteriorated to the point where they are unable to perform in a role. Dismissal can be reasonable if the employee has a serious or long-term health condition. However, this is usually the final resolution and employers will take steps to ensure they are offering adequate support to enable a worker to stay in their job. An employee can be dismissed if they are not performing or if they do not have the necessary skills to adapt to the role. The employer should follow steps relating to performance management to enable the employee to improve their skills.

What about redundancy?

Redundancy can be stressful for employees but a necessary step if the company is forced to downsize or axe departments. Making an employee redundant is only fair if their role is no longer available. An employer cannot simply make an employee redundant merely because they don’t get along with the rest of the team or they create personality clashes.

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What is an unfair dismissal?

A case of unfair dismissal is usually based upon some form of discrimination, whether that is because of gender, age, race, sexual orientation or religion. Dismissing an employee because they are pregnant is unfair, as is anything related to maternity. It is also unfair for a company to dismiss an employee because they require time off to look after dependents.

For those seeking to enquire about a constructive dismissal claim, there are various professionals who can assist. For example, an https://www.employmentlawfriend.co.uk/constructive-dismissal Employment Law Friend constructive dismissal claim can be progressed with professionals who are skilled and accomplished in this area. A number of people have recently won high profile dismissal cases, including an NHS worker in Lincolnshire.

What happens if a company fails to follow the dismissal process fairly?

If employers fail to give adequate notice or refuse to follow the correct procedure, then an employee may have a claim for unfair dismissal. Employers should provide reasonable notice to staff in the case of redundancies and they should honour the contract of employment. If an employee has been forced to resign due to the firm’s unreasonable behaviour, then they may have a reasonable claim for constructive dismissal. This includes incidents of harassment or a sudden change to a contract, for example, insisting a part-time employee who has chosen to work fewer hours due to caring responsibilities, switches to full-time hours.

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