What qualifies as unfair dismissal - could one of your staff take action against you?
By Martin Donoghue of thePublican.com's team of legal experts at London solicitors Joelson Wilson.
I recently had a telephone call from the manager of a local pub. He had just been threatened with the sack because of an unfortunate indiscretion. I will spare his blushes and not give the details, but he wanted to know what he could do if he was to be sacked.
I told him that if he was employed, and not self-employed (it can sometimes be very difficult to tell the difference), he may have certain rights against his employer. One of these was not to be sacked in circumstances the law says are unfair. This is known as unfair dismissal.
He wanted to know more, and so I explained that it was not an easy area and that there were various obstacles he would have to overcome if he was going to bring a successful claim.
Firstly, he would have to show that he had been employed long enough to claim unfair dismissal. Normally he would have to be employed for at least a year, unless there were some circumstances - for example if he was sacked for being a whistleblower - where he could make a claim, no matter how long he had been employed, even if it was for less than a day.
Next, his employment would have to have come to an end. He said this seemed obvious, and I agreed, although I said it can sometimes be difficult to tell if particular words or actions were enough to dismiss, and he was interested to learn that in some cases a resignation can count as a dismissal by the employer.
If he had been sacked, the next question to ask was whether it was fair to sack in all the circumstances. There were only a few reasons to justify a dismissal that an employer could get away with, including an employee's bad behaviour, or an employee being bad at his job, and even then the employer would have to show that it was reasonable to sack for this reason.
There were also steps an employer would have to follow before dismissing an employee.
Then came the inevitable question, what could he get if he claimed unfair dismissal and won? I said that there were three basic options:
- he could get his old job back
- he could get another job with his ex-employer
- he could get money - normally no more than £57,000 plus a bit more depending on how much he earned and how long he had been employed, although if he had been sacked for certain limited reasons (again whistleblowing was one of them) he could hit the jackpot as then there was no limit on the amount of money he could get.
Although not confident he would keep his job, he was reassured that if he was dismissed unfairly, his employer may have to pay a heavy price.
I did say that the stakes could be high and that many people tried to save money by not getting proper advice before sacking somebody or if they had been sacked. As it was a complex area, this often proved to be a false economy and cost them money in the long run.
Food for thought!