dismissal by lindash


DEFINITION "Dismissal" is the termination of an employee's contract of employment by his or her employer. The term also applies to the situations where an employee's fixed-term contract expires without being renewed, or the termination of a contract by the employee (with or without notice) due to the employer's conduct (ie the employee was forced to resign).

There are five fair reasons for dismissal by the employer. These are: (a) (b) (c) (d) (e) Poor performance (capability) and qualifications Misconduct Redundancy Contravention of a statutory enactment Some other substantial reason.

Written Statement of Reasons for Dismissal
Under S.92, 93 of the Employment Rights Act 1996, an employee with over two years' Continuous Service is entitled to be provided with a written statement giving particulars of the reasons for dismissal, within 14 days of making a request to the employer. If the employer fails to give these written reasons, the employee may make a complaint to an industrial tribunal, either on the basis that the written particulars were not provided, or that the particulars given were inadequate or untrue. If the industrial tribunal finds in the employee's favour, it will award the employee a sum equal to the amount of two weeks' pay, subject to the statutory limit for weekly pay. Under common law, if an employee's employment is terminated in accordance with the terms of the contract of employment, then the employee has no claim for unfair dismissal against the employer. An employee with over two years' continuous service (of at least eight hours per week) may, however, have rights to claim unfair dismissal. The Trade Union Reform and Employment Rights Act 1993 has widened the right to claim unfair dismissal to employees without two years' service. The circumstances under which no qualifying service is needed are outlined in the Unfair Dismissal section.

Poor Performance and Some Other Substantial Reason for Dismissal
Dismissal for poor performance (legally interpreted as "by reason of capability") is often the hardest dismissal to justify because it requires the employer, in this case the practice, to produce evidence of the lack of ability complained of. The incapability of an employee to do the work that he or she is employed to do will either relate to the employee's lack of ability or skill, or will be due to ill health. If a practice wishes to warn or dismiss an employee for poor performance, then it is important that the practice manager follows a

fair procedure in order to avoid a claim for Unfair Dismissal. The practice manager must make the employee aware of the areas where he or she is failing to do the job properly, and should offer that employee the necessary training and time to put things right. Warnings should be clearly st ated and put in writing to avoid any doubt on the part of the employee. Many practices will operate Appraisal systems whereby once or twice a year an employee's performance is appraised. These appraisal systems can be used as evidence of an employee's lack of ability. They must not, however, be relied upon as warnings leading to dismissal. If an appraisal is not satisfactory, it would then be necessary for the practice manager to invoke the disciplinary procedure using the appraisals as evidence. Practice managers undertaking dismissals or disciplinary action should be careful to ensure that the evidence relied upon is consistent, for example it is often the case that employers who are seeking to dismiss an employee for poor performance produce appraisals which show that the employee is at worst satisfactory and often better than satisfactory. It is also not uncommon for employees who are to be dismissed for lack of ability to have recently received a salary rise. Such evidence is obviously inconsistent with allegations of the employee not performing to a satisfactory standard. Practice managers must also be careful when looking to dismiss a long-serving employee for poor performance (by reason of capability). It is often very difficult to justify dismissal when an employee has a long history of employment in the practice. To dismiss a long-serving employee for lack of ability, the practice manager must be able to justify why the concerns about the employee's ability to work have only arisen after many years of employment. There may of course be a good reason, for example the introduction of modern technology. In very rare circumstances there may be grounds for immediate dismissal for poor performance (on the grounds of capability) or grounds for missing out some of the stages in the warning procedure (eg going straight to a final written warning) if the lack of ability complained of is so serious as to warrant this. Examples of this may be where the employee was grossly negligent and/or that negligence has led to the practice suffering a significant loss. Dismissal for some other substantial reason is the catch-all phrase that an employer will need to rely on if he or she cannot show that the dismissal was for one of the other acceptable reasons. An example of dismissal for some other substantial reason is the termination of an employee's fixedterm contract. Whilst this is the catch-all reason for dismissal, a practice manager must not forget that it is still important to follow a fair procedure when dismissing an employee for some other substantial reason.

The practice manager should ensure that a fair procedure is followed in all cases of dismissal, as a matter of good practice. The checklist below outlines the procedure to be followed in a case of dismissal following a warning.

1. 2.

Is dismissal being effected at the expiry of the review period and has performance been unsatisfactory? Is it a repeat of an act of Misconduct for which a final warning has been previously given? If so, is it a reasonable period of time since the warning was given, considering the nature of the offence?

3. 4. 5. 6. 7.

Is another penalty short of dismissal feasible? Decide whether notice is required to be worked. Inform the employee of the appeal procedure. Confirm dismissal, notice, outstanding pay and other termination in a letter. If written reasons for dismissal are requested by the employee or required by the practice's procedures, the practice manager should provide full details of the reason for dismissal, the stages of warnings gone through and copies of previous written warnings.

Below is a letter confirming dismissal following previous warnings: Dear ______ On _____ you were informed in writing that you would be given a final written warning in accordance with stage _____ of the practice's disciplinary procedure. You were also warned that if your performance/conduct* did not improve, you were likely to be dismissed. At the disciplinary hearing held on _____ it was decided that your performance/conduct* was still unsatisfactory and that you should be dismissed. I am therefore writing to confirm the decision that you be dismissed in accordance with stage _____ of the practice's disciplinary procedure and that your last day of service with the practice will be _____. The reasons for your dismissal are: (a) (b) (c) You have the right to appeal against this decision verbally/in writing* to _____ within _____ days of receiving this notice of dismissal. Signed:

Practice Manager (or partner) *delete as appropriate

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