Steps to follow
Have you been fired following a certain number of warnings? Or fired on the spot?
You can only be fired for a first offence if there has been gross misconduct. This means behaviour serious enough to completely break down the employee and employer relationship. An example would be doing something which endangers the health of other workers, theft from the workplace or misusing confidential information.
If this is not the case, your employer should in most circumstances have given you two warnings, should have informed you why your performance was lacking, and allowed you to appeal against any decision made.
If, following your appeal, you feel you have been unfairly dismissed then consult an employment adviser or lawyer with a view to claiming compensation. Alternatively, you can bring your own claim. If you wish to make a claim, you will have to submit your application to the employment tribunal within three months of your dismissal.
Have you been made redundant? Did your employer follow the correct procedures? They should have consulted you and your colleagues about the impending redundancy, and have followed a fair redundancy dismissal procedure. The job must have disappeared—redundancy cannot be used as an excuse to dismiss someone. A pool of employees must be identified from which people will be selected. Selection criteria must be objective, non-discriminatory and applied consistently. Acceptable criteria include skills, qualification and aptitude, performance compared with others on a similar level, adaptability and attendance.
You have a right to a statutory redundancy payment if you have at least two years’ continuous service.
You may be able to claim unfair dismissal if you have been unfairly selected, or the employer failed to offer alternative available work. You will first need to appeal to the employer.
Do you want to fire an employee? Employers should, from April 2009, follow the Acas code of practice during disciplinary and dismissal procedures. The Acas code is not law but has a similar status to that of the Highway Code. It is therefore best practice to follow it, and the law will take account of any failure to do so.
If employers don’t follow the code and the case goes to an employment tribunal, the tribunal will assess whether this was reasonable, given factors such as the size of the business.
The code recommends that employers and employees raise and deal with issues promptly and act consistently. Employers should investigate issues to establish the facts, inform employees of problems so that employees can put their case, allow employees to be accompanied at any disciplinary or grievance meeting, and allow employees to appeal against any decision made.
Employees who are dismissed for misconduct or poor performance should usually be given two formal warnings before being dismissed.
No warnings are necessary where an employee is fired for gross misconduct. The employer should usually provide a written statement of the grounds for action; have a face-to-face meeting to discuss the matter, at which the employee can be accompanied by a friend or representative; and give the employee an opportunity to appeal their decision.
Are you hiring, or considering hiring, an employee? The first step is to define the job and its requirements in terms of the skills, knowledge and understanding that you are seeking.
Avoid discriminatory language, such as ‘young’, ‘junior’ or ‘saleswoman’, in any job spec or advert. Try not to ask discriminatory or offensive questions at interview. You cannot, for example, ask candidates about their religious affiliations, or ask a woman when she expects to have children, or ask an older candidate when they expect to retire.
What to watch out for
Employers should follow the Acas code of practice when dismissing staff or they could find it hits them in the pocket. Not only is a claim from a disgruntled ex-employee more likely to go to a tribunal but the tribunal can then adjust any subsequent awards up and down by up to a quarter to take account of the employer’s failure.
Solicitor’s top tip
When interviewing job applicants, keep a record of what is said, but don’t write down your thoughts about the candidate—these notes may need to be produced if the candidate subsequently makes a complaint.
Choosing an employment lawyer
Gross misconduct or being fired
Making staff redundant
Overview of employment rights business
Overview of employment rights personal
Overview of sex discrimination in employment
Termination of employment contracts
What is redundancy