Dismissal and Redundancy

A dismissal is done by the employer by terminating the employees contract unlike a resignation where the employee terminates the contract

Constructive dismissal

An employee is forced to end the contract for example due to lack of payment. In this case, no law can stop the employer from dismissing the employee but the employee can sue the employer for unfair dismissal to employment tribunal.

Employment tribunals are mostly not held in the court but they help in solving employment related disputes such as unfair dismissal, discrimination and unfair deductions from pay.

Fair dismissal

This is when the employer has enough reasons, which may include misconduct and inability to perform task, to dismiss the employee and does it reasonably. The employer should also consider some protected characteristics of the employee which if not followed, the dismissal would be termed unfair. This include:

- gender marital status;

- age disability;

- race, religion and beliefs;

- sexual orientationmembership in trade union;

- unfair dismissal.

Dismissal where the employer fails to adhere to terms stated in the employment contract.

The employer fails to follow the following:

1. Disciplinary procedure

This are clearly stated rules in the employment contract made by the employer and which the employee is expected to adhere to. Failure to this, the employer may decide to warn, scold or end the employees contract.

The dismissal would be unfair if the employer fails to follow the disciplinary procedure stated in the contact.

2.Grievance procedures

Before dismissing the employee, the employer is supposed to follow some basic procedure like the unions grievance procedure contained in the union collective bargaining agreements. Failure to this, the dismissal is considered unfair.

3. Legal obligations

These are duties that the employer has to ensure equality during the process of contract termination.

Discrimination during this process, dismissal due to comparison with other employees and due to failure of employer to provide good working conditions is termed as unfair dismissal.

An example of unfair dismissal

In 2015, Smith V. Smart Industries dismissed a disabled employee unfairly.

Considering that the employee was disabled, the employer should have helped him where necessary but instead the employer compared him with fit employees and reduced his salary claiming he was of low productivity compared to others. The other employees, even those who had just joined the company, earned more than he did by a wide range but carried out the same tasks. The disabled employee was finally fired.

The employer failed to comply with disciplinary procedures for noticing the employees condition and offering assistance where necessary and for unfair reduction of wages. The employee acted against protected characteristics of employees which in this case was disability. Asking the employee to make a redundancy which was noncompliance to the grievance procedure. This was enough evidence of unfair dismissal and could be presented to employment tribunal for unfair dismissal.

Fair dismissal grounds

The following grounds are considered fair dismissals:

- compatibility of the employee at work. For example dismissal due to failure to attend work without permission;

- lack of competence. Failure to carry out given tasks and to meet targets can lead to dismissal;

- unqualified employee can be dismissed;

- misconduct. If the employee is carrying out illegal activities such as stealing, bullying of fellow employees or use of drugs during work he or she can be dismissed;

- redundancy. In this case, the employer has to show existence of redundancy.

If the dismissal does not stand on any of those grounds or the ones mentioned in the employment contract, it is unfair dismissal.

Redundancy

It is the reduction of employees by an organization in order to decrease their spending during financial constraints.

It can also be caused by:

- end of business operations and all employees are rendered redundant;

- when the departments are way too many and some of them can be merged;

- when another job is being offered to an employee.Redundancy process should be fair and the employer should do this by considering the same grounds we mentioned earlier in fair dismissal process. For example the competence of the employer. Any form of discrimination is unfair dismissal.

In order to ensure a fair redundancy process, the following steps are followed:

1. Ask the employee who would like to end their contract based on their own reason.

2. Identify the employees who are not following the rules stated in disciplinary procedure.

4. Evaluate the employees by considering their qualifications and skills.

5. Retain employees with high productivity and those whose skills are improving steadily.

6. The protected characteristics are not considered fair grounds for redundancy process.

Other forms of unfair grounds during redundancy process include:

- redundancy based on type of contact. For example different working times;

- redundancy due to maternity leave;

- when one is a whistleblower. Redundancy of an employee because he raises alarm when things go wrong;

- cutting of employees because they are taking part in an industrial action.

The employees have rights if they are let go by the company. The rights include:

1. Redundancy pay

Employees who worked for a company for more than two years should receive statuary redundancy pay.

The law states that any employee of 22 years and below should receive half of the salary they got each week while working for the employer.

It includes a severance pay. Redundancy pay lower than 30000 is not taxable.

2. Notice period

A notice should be given to the employees who will undergo redundancy. The notice enables the employee to look for another job before losing the job.

Work period Notice period in weeks

1 month-2 years At least 1

2-12 years 2-12

>12 At least 12

3. Notice pay

Employees should be paid as usual during this period. There should be no deduction in wages even if the notice period falls when the employee borrows permission for personal reasons.

4. Consultations

The employee is allowed or has rights to ask the employer why he was cut off from the company. For example, the Smart Industries did not have reasons to redundant the disabled employee. He was very productive before he got into an accident and became disabled. Changing his working conditions to suit his conditions would have been better than redundancy.

To finalize, all employees need to observe the necessary procedures before redundancy or dismissal of an employee.