Termination of employment can happen in one of two ways - the employee can resign or the employee may be dismissed. In either case it can be a difficult decision for the employee, the employer or both and this area of law is heavily regulated to prevent abuses.
If an employee resigns he effectively gives up his rights as an employee so there are also safeguards in place to protect employees that feel pressurised into doing so or obliged to do so. These generally fall into a category of termination known as constructive dismissal.
Where an employee is actually dismissed, the dismissal will either be lawful or wrongful. In either case the employee may be able to claim that it was unfair.
Notice
Every contract of employment is terminable upon the greater of reasonable notice or the minimum period of notice specified in s86 of the Employment Rights Act 1996. Generally contracts will specify the notice period required but for an employee continuously employed for a month or more, the statutory minimums are:
- Not less than a week if that period is less than 2 years
- Not less than a week for each year of continuous employment if that period is more than 2 years but less than 12 years
- Not less than 12 weeks if that period is more than 12 years
Parties can waive their right to notice or accept payment in lieu of notice.
Dismissal
A dismissal occurs when:
- The employer terminates the contract of employment in accordance with the notice period
- The employer terminates the contract of employment without notice - a summary dismissal
- A fixed-term contract expires and is not renewed
- The employer’s conduct is such that there is a fundamental breach of the contract and the employee resigns as if they were dismissed - constructive dismissal
Fair Dismissal
In order for a dismissal to be fair the employer must show in respect of the employee that the reason for the dismissal related to:
- The capability or qualifications of the employee for the type of task for which he was employed
- The conduct of the employee
- The retirement of the employee
- The employee’s job was redundant
- The employee being unable to continue to hold his position without breaking the law or some other substantial reason
If an employee is dismissed for any other reason then he may be able to claim that the dismissal was unfair.
If you would like further information regarding any Employment matters, Rollingsons has experienced lawyers who can advise you. Please contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.
