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Termination & Claims: Dismissal

Protection against Dismissal

Employees with at least two (2) years’ service have the right not to be dismissed other than for one of a number of prescribed reasons which are redundancy, capability, conduct, continuing in the position would be illegal in some way or “some other substantial reason”.  In addition to relying on a potentially fair reason to dismiss, employers must follow a fair procedure.  Failure to follow a fair procedure, or terminating employment for a reason other than one of the reasons permitted by law, could lead to a claim for unfair dismissal. The maximum compensation for unfair dismissal is reviewed by the Government each year.  It is currently (2018/2019) the lower of £83,682 or 52 weeks’ pay, plus a basic award which is calculated based on age, length of service and weekly pay (weekly pay is capped, currently (2018/2019)  at £508).

For certain dismissals, such as those where the employee was carrying out health and safety activities, had made a protected disclosure (i.e. is a ‘whistleblower’) or whose dismissal was discriminatory, the compensation may be unlimited and there is not a requirement for the employee to have been employed for two years (i.e. to have qualifying service) to bring a claim of unfair dismissal.

Employees may also have claim that they have been “constructively dismissed”. The employee must show that their employer has committed a repudiatory breach of the contract of employment, that they resigned in response to that breach and that they did not delay in resigning.

Non-renewal of a fixed-term employment contract will be a dismissal by the employer for the purposes of UK employment law.

Notice requirements

The concept of an “employment at will” relationship, where an employer may terminate the employment of an employee at any time for any reason, does not exist under English law.

An employer may terminate an individual’s employment by serving them with the notice required in their employment contract or by serving statutory notice if that period is longer than the period set out in the contract. The contract may include provisions that give the employer the right to pay the employee in lieu of notice or to put them on garden leave.

Post-termination Restrictions

In addition, note that if an employer terminates an employee’s contract in breach of its terms, this will usually invalidate post-termination restrictions.

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