If your job is under threat due to allegations of misconduct, or you’ve already been dismissed, it is a very stressful time. It’s important to understand what fair reasons for dismissal are in this type of workplace situation.
Employees with over 2 years service in the UK are protected from unfair dismissal. This means strict disciplinary procedures must be followed after allegations of workplace misconduct.
An employer must be able to demonstrate that fair process was followed when making a decision to fire an employee. Failing to do so means they risk
What Situations Can I Be Fired In?
An employer threatening to sack you can be an empty threat with no legal basis. However, there are situations in which you can be immediately dismissed; such as incidents of gross misconduct.
You may also be able to be sacked for no reason during a probation period when you start employment, or prior to having two years continuous service with an employer. The exception to this is dismissal which would amount to discrimination against a protected characteristic.
The 5 Fair Reasons For Dismissal
There are 5 reasons why you can be fairly dismissed. These are laid down in the Employment Rights Act 1996:-
- Capability – this covers performance related issues as well as disability which means you can no longer do your job, even if reasonable adjustments have been made.
- Illegality – you can be dismissed if it would no longer be legal to employ you. For example, a truck driver who has had a driving ban, or an employee who’s working rights on a residency visa have expired.
- Misconduct – this can be for things like persistent lateness, or taking unauthorised time off work. Usually there will have been written warnings leading up to dismissal. In cases of gross misconduct for issues like violence in the workplace, or theft – you can be dismissed immediately. However, a fair process must be followed in deciding to sack you.
- Redundancy – there must be a genuine reason for redunancy such as the company ceasing trading, or there no longer being enough work for all staff. A formal redundancy process must be followed.
- Some Other Substantial Reason – this can be anything not covered above such as a fixed term contract coming to an end, but there must be evidence that the dismissal is fair.
Our article looking at if you can be sacked for being off sick with depression takes a closer look at capability procedures.
Being Made Redundant
If your employer suddenly has a drop in income or need for staff, and so cannot pay or does not need as many employees, they may consider redundancies. (More information on redundancies here).
“I am contracted to work 36 hours a week. My company has no clients in so work has ceased. Should by law they still have to pay me?”
There is a formal redundancy process that must be followed, including consultation with the person whose job is at risk; your employer can’t legally just stop paying you or tell you not to come into work anymore.
Being Fired For Gross Misconduct
Gross misconduct is conduct so serious that it warrants immediate dismissal.
Even if you commit gross misconduct, you cannot be fired on the spot; there is a process that must be followed.
If your employer fires you and does not ensure they are using fair reasons for your dismissal, you may be able to take legal action.
- Your employer can suspend you whilst they investigate the alleged incident. You will however still be paid whilst suspended
- There will be a meeting at which you will be given an opportunity to put forward your case. You must be given reasonable notice of the meeting to allow you to consider the points you wish to make.
- After this meeting, your employer must give you reasons in writing for your dismissal.
- You have the right to appeal the decision. If you appeal, your employer must invite you to another meeting. You must again be given advance notice of this meeting and will be given the opportunity to be accompanied by a friend, union representative or colleague (depending upon your employer’s procedure for disciplinary meetings).
- Following an appeal meeting, your employer must promptly inform you of their final decision in writing.
The definition of gross misconduct depends upon the job. For example, two employers could require their employees to sweep up litter on an outside area of the premises and ban employees from smoking during this task.
However the seriousness of the breach would be different for someone working at a hotel, where smoking might just look unprofessional, compared to at a petrol station where smoking is dangerous.
See Also: Can I be dismissed for an accident at work?
Other Legal Reasons For Dismissal
Although employers must usually show the dismissal of an employee is fair, there are some situations where this obligation under UK employment law does not apply.
During Probation Periods
Your employer can legally “let you go” without giving a reason at any time during your probation period (as long as this is not for a discriminatory reason). They do however still need to give you the required notice period (usually one week). Our article on probationary periods gives further information about this.
Employees with Less Than Two Years Service
Satutory protection against unfair dismissal is only accrued once an employee has been in a role for two years.
If an employee has been in a job for less than two years, an employer is not obligated by law to demonstrate the reasons for dismissal were fair. This means an employer may be able to terminate your employment legally without requirement to undertake disciplinary procedures. However, you are still protected against being fired for reasons covered in the Disability Discrimination Act (see protected characteristics above).
Zero Hour Contracts
If your employer stops giving you any working hours (and so you do not receive any income), it may feel like they have fired you. However if you have a zero hours contract, they are not obliged to give you any hours. You have therefore not technically been fired, as you are still in their employment, but working zero hours.
Changes to Working Hours
Changes to working hours are not always a legal reason for dismissal, but some scenarios can lead to an employee being fired.
If your employment contract does not give you fixed days and hours, your employer can request that you work at different times, and change a previous rota. You have to be given reasonable notice of the change. If you are not given reasonable notice (usually a minimum of 24 hours), you can refuse to change your working hours. This is not a reason to legally fire you.
However, If you have reasonable notice of the change, and the new hours comply with your employment contract, you cannot refuse to work when asked. If you have worked for your employer for over 26 weeks and are the full time carer of a child under 17 years old or a dependent adult, you can ask for flexible working. Your employer does not have to agree to this. If they do not agree and you still refuse to work required shifts this may be a disciplinary issue. It is unlikely that this gross misconduct, but a number of disciplinary issues could lawfully lead to job loss
Situations Where it can be Illegal to Fire An Employee
Employers must ensure that they are using fair reasons for dismissal. Workers have various rights protected by UK law. Sacking an employee who has rights protected by these laws would leave the employer open to being taken to an employment tribunal.
Protected characteristics are enshrined in the equality act. If you lose your job on grounds covered in the act, your employer will be in breach of the law and you may be able to take them to an employment tribunal.
You cannot be fired for reasons covered by these protected characteristics:-
- Reasons related to your gender (sex discrimination or gender reassignment).
- Due to your age (age discrimination).
- Because you develop a disability.
- On the basis of religion.
- On grounds of Sexual orientation.
- Because you got married or entered a civil partnership.
Working Time Directive
The working time directive protects working hours and breaks in UK law. If your employer fires you for taking the breaks you have a right to under this legislation, they have acted illegally.
The Working Time Directive gives workers a number of rights and protections. These include:
- Working a maximum of 8 hours out of every 24 hours for night shift workers.
- 1 day off in every 7 days.
- 11 hours off in every 24 hours.
- A short in-work break every 6 hours.
- 4 weeks paid leave every year.
Any worker over 18 years old can opt out of the Working Time Directive. However, you cannot legally be fired for your refusing to do so. Equally, if you have opted out and choose to opt back in, your decision to opt back in to the Working Time Directive is not a reason to lawfully fire you.
There is no lawful way to just fire someone “on the spot”. If you are sacked, it must be fair and correct procedures must have been followed.
The ACAS guide on dismissals and fair reasons for dismissal is helpful for both employees and employers. Our guide to equal opportunities at work shares further information on how workplaces should promote equality and diversity.