Employment Law

5. Dismissals

5.1 If the contract of employment does not specify a notice period, an employee is entitled to a 'reasonable period of notice'. In either case, the employee is entitled to at least the statutory minimum notice period of one week after one month's employment. After this, entitlement increases at the rate of one extra week per year, to a maximum of 12 weeks after 12 years' employment.

5.2 If you dismiss an employee without the right notice, this will be wrongful dismissal.

• The employee is usually entitled to normal remuneration (both salary and benefits) during the notice period. This applies even if you wish to end the employment immediately, unless there was gross misconduct or the employee suffers no financial loss (eg by immediately starting a new job at a better rate of pay) or if you have reserved the contractual right to pay pay in lieu of notice without benefits.

5.3 If an employer breaches the contract, the employee may be able to resign immediately and claim constructive dismissal if the breach was material, going to the root of the contract.

• For example, if you reduce pay without agreement, or tell the employee to resign.

5.4 An employee (even a part-timer) with one year's continuous service who is dismissed without a fair reason and reasonable treatment can claim unfair dismissal.

• You must follow an appropriate disciplinary procedure which incorporates the statutory dismissal procedure and includes appropriate verbal and written warnings.
• Employees will be automatically unfairly dismissed if no appeals procedure is provided.
• An employee failing to pursue an internal appeal may not be able to proceed with a case.
• An employee can ask the tribunal to order re-employment or award compensation. The basic award is £9,900 (depending on age and length of service) and compensation for financial loss up to a maximum of £63,000.

5.5 If an employee chooses to leave your business, as opposed to being asked to leave, you can usually require him or her to work out the full notice period.

• If the employee refuses to work out the notice period, he or she will not be entitled to be paid for it.
• If you insist the employee must stop work immediately, or before the notice period ends, you must still pay what would have been earned during the notice period.
• If you both agree that the employment should end straight away, no further payment needs to be made.

5.6 Employees who are made redundant are not entitled to claim redundancy pay until they have over two years' service.

• Tax is not payable in respect of statutory redundancy pay.
• Payments to an employee in lieu of notice used to be tax-free (under £30,000). Check with your legal adviser.
• Avoid claims that a redundancy is unfair dismissal by ensuring that it is genuine. In general, the job must have disappeared.
• The employer must also select employees for redundancy on a fair and objective basis, after reasonable consultation, and with adequate notice and a fair appeals procedure.