Employees with 2 years’ service cannot be lawfully dismissed unless their employer has a ‘fair’ reason for the dismissal such as misconduct, poor performance, capability, redundancy or ‘some other substantial reason’. The procedure adopted by the employer may also make the dismissal unfair even if it would otherwise have been a lawful dismissal.

An employee can make a claim to an employment tribunal where they believe that their dismissal was unfair. An employment tribunal will listen to the evidence and decide whether the dismissal was actually fair in all of the circumstances of the case.

In certain circumstances employees with less than 2 years’ service may be able to claim that their dismissal was automatically unfair, for example, if an employee has been the victim of unlawful discrimination.

A dismissal could be unfair if an employer does not have a good reason for dismissing the employee or does not follow the company’s formal disciplinary or dismissal process.

If an employee is dismissed in the following situations, it is likely to be unfair:

• where they asked for flexible working
• they refused to give up their working time rights, for example, to take rest breaks
• they joined a trade union
• they took part in legal industrial action that lasted 12 weeks or less
• they needed time off for jury service
• they applied for maternity, paternity and adoption leave
• they were on any maternity, paternity and adoption leave they were entitled to
• they tried to enforce their right to receive Working Tax Credits
• they exposed wrongdoing in the workplace (whistleblowing)
• they were forced to retire (known as ‘compulsory retirement’) – compulsory retirement is not allowed unless an employer can objectively justify it.

Constructive dismissal is when an employee is forced to leave their job against their will because of their employer’s conduct. The reasons why the employee leaves their job must be serious, for example, they are not paid or suddenly demoted for no reason, they are forced to accept unreasonable changes to how they work – for example, told to work night shifts when their contract is only for day work, they are harassed or bullied by other employees and their employer does nothing to stop it. An employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.

An employee should try and sort out any issues by speaking to their employer to solve the dispute, however, if the employee does have a case for constructive dismissal, they should leave the job immediately because an employer can argue that, by staying, they accepted the conduct or treatment.

Wrongful dismissal is a breach of the contract of employment by the employer usually involving notice periods.

An unfair dismissal claim can be made if the dismissal isn’t for potentially fair reasons under the Employment Rights Act 1996. The right to claim wrongful dismissal isn’t included in the Employment Rights Act it is a common law claim based on breach of an employment contract.

An employer has a responsibility to act legally when terminating someone’s employment and give correct notice. Where an employer acts wrongfully the employee can make a claim against them.

There are only two instances where a notice period is not required for termination:

• if the employee has committed gross misconduct or a serious breach of contract, for example, theft, bullying, or harassment. This is also known as a summary dismissal.
• if there’s a payment in lieu of notice clause included in the employment contract. A payment in lieu of the notice clause is when both parties agree to a lump sum rather than service of the required notice period.

An employee is well within their rights to claim for being both wrongfully and unfairly dismissed. However, they cannot receive double compensation – but both elements of the claim would be factored into the compensation payment.

When claiming wrongful dismissal an employee can be awarded compensation for what they would have received during their notice period. This is usually made up of basic salary, other benefits, any bonuses or allowances (such as a company car, private health cover and pension entitlement) and contractual benefits. The employee may also claim for any other contractual benefits they feel they’re owed.

The amount of damages awarded can vary depending on the wording of the employment contract.

In the UK, the amount of compensatory award for an employment tribunal is capped at £25,000 – anything higher must be pursued through the county court or high court.

Termination of employment claims can be expensive for employers, especially if they have to pay damages.

Taking the following steps can avoid a breach of contract claim and an employment tribunal:

• Create effective documentation and ensure the contract of employment clearly states a fair procedure for termination.
• Follow the terms of the employment contract.
• Provide training for staff on equality and discrimination in the workplace etc.
• Provide training for all managers on how to discipline correctly and procedures to be followed.
• Ensure that staff are provided with sufficient notice at the end of their employment.

 The recent Employment Appeal Tribunal (EAT) case of Tijani v House of Commons, in which a member of the House of Commons’ cleaning staff was dismissed for persistent lateness, provides a useful reminder that dismissals for repeated minor misconduct can be justifiable, even if an employer’s disciplinary policy is not clear. This blog explains the case and outlines practical tips for employers facing a similar scenario.

The Background

Ms Tijani started working as a cleaner at the House of Commons in June 2015. She would often arrive at work late, and in December 2017 received a first written warning after arriving late to work on 17 out of 20 days. She was given a final written warning in April 2018 which made clear to her that if her timekeeping did not improve, the next stage of the process could lead to dismissal. Despite this, her lateness continued. Although some of the periods of lateness varied considerably (from 2 minutes up to 33 minutes), a subsequent investigation found that Ms Tijani arrived late to work 50 times in the seven months following the final warning. Ms Tijani was subsequently dismissed in May 2019.

The ET and EAT decisions

Ms Tijani brought a claim in the Employment Tribunal (ET) for unfair dismissal. The House of Commons relied on her conduct (i.e, her persistent and continued lateness) as a fair reason for the dismissal. Ms Tijani argued that dismissal was a disproportionate response to lateness, arguing that she was only late “sometimes”, that others had not been dismissed for being late and that she had not been told why “two minutes here or there” had impacted the business.

The ET rejected the claim, finding that the House of Commons had acted reasonably and that the dismissal, following multiple written warnings, was fair.

Ms Tijani appealed to the EAT, complaining that the House of Commons did not produce a disciplinary policy in evidence during the hearing before the ET. Without the policy, she argued, the ET could not measure the nature and extent of the alleged misconduct and the appropriate reasonable range of responses available to the employer.

Whilst the EAT found that this was unfortunate, it recognised that Ms Tijani had been given written warnings (including a final one) and was well aware that dismissal would be a likely consequence should her lateness persist. In addition, the EAT felt that the sheer number of times she had been late meant that dismissal was a proportionate response. The EAT also concluded that employers should not have to prove that an employee’s misconduct was having a “specific knock-on effect” on the business in order to justify a dismissal. The EAT found that Ms Tijani’s dismissal was fair and rejected her appeal.

Useful information for employers

Employers should have confidence in exercising disciplinary sanctions, including dismissal, for minor misconduct where that conduct is persistent and continued. Prudent employers, however, will have a clear disciplinary policy setting out a non-exhaustive list of examples of misconduct and associated sanctions. This can be produced during any disciplinary proceedings or litigation to demonstrate that the employer has acted reasonably in accordance with a clear disciplinary policy. 

• Keep a clear record of the persistent misconduct, no matter how minor.

  Not only does this assist in building a picture of the misconduct over time, it also protects employers against a situation where the employee tries to minimise the misconduct, as Ms Tijani did in claiming that her lateness was “sometimes” and “just a couple of minutes”. 

• Keep records of all warnings given to the employee, both written and verbal, and notes of any meetings with the employee discussing the misconduct.

  This will protect against allegations of unfair procedure or process, show that there was open dialogue with the employee, and that it had been made clear to the employee that their conduct was an issue and the potential sanctions if the problem persisted. 

• Ensure the employee is aware of disciplinary policies and that continued misconduct, however minor, could result in dismissal.

  Ensure that the employee knows where to find a copy of the relevant policy, or is provided with a copy directly where necessary. 

• Explore the reasons for the persistent misconduct.

  It would be prudent to discuss this with the employee to ascertain whether an external factor, such as ill health or personal issues, is behind the misconduct. If this is the case, consider whether any adjustments could be put in place to support the employee, or if compassionate or sick leave may be required for a short time.

Contact our Employment Law Solicitors

For more advice in relation to this topic, please contact our Employment Law Solicitors on 020 8240 9018 or via the enquiry form on our website.