Common pitfalls of terminating employment8.10.2010
Most employers are now aware that dismissal carries consequences and consequently do not approach it lightly. Even those who are careful often run up against some common mistakes which can be easily avoided.
Employers are often of the opinion that they can dismiss employees without consequence during the first year of their employment. Although this may be true in the main, there are certain exemptions to the one year service rule for a claim for unfair dismissal and employers should check whether the employee in question comes from any of the exempted categories.
Particular care should be had when the employee can argue that the dismissal is based on discrimination or pregnancy related grounds, and they are able to claim unfair dismissal without having the requisite service.
Some employers review their new employees just prior to the one year service date. Again, there is another trap here for an unwitting employer. If an employee is dismissed with immediate effect at week 51 of their employment, in certain circumstances employees are able to tack on the statutory minimum notice to their length of service thus getting them to the magic one year. Where employees are dismissed close to the one year anniversary, care should be taken with regard to the date of the dismissal and any periods of contractual or statutory notice that may apply.
Many problems arise from employers either relying on oral dismissal or being unclear in any written letter when the date of dismissal is effective. Although dismissing somebody does not have to be evidenced in writing it is clear from the cases on this subject that it is always best to have clarity and evidence of exactly what notice was given and when.
Any dismissal letter should be quite clear about the specific date the contract ends. Many employers have suffered problems where they have referred to notice periods and dates in the future. The Employment Tribunals have been ruthless where there is ambiguity in construing these letters against the individual who wrote them.
Finally, employers often ask if they are entitled to make their employees work their notice period. Although there is a remedy of suing an employee, it is extremely rare that this step is taken as it is difficult to prove a financial loss as a result of the employee not turning up. Clearly, employers do not need to pay employees who fail to turn up for their period of notice providing they are not met with any requirements for notification of sickness or any holiday.