Published 3rd September 2020
When an employee is “sacked” or “fired”, it means that they have been dismissed and an employer has ended their contract.
When can you be dismissed without a warning?
Employees who have got less than two years qualifying service with an employer can be sacked without a warning – with some exceptions.
- If the employer’s disciplinary policy is contractually binding as opposed to being non contractually binding (within a staff handbook, for example) then if the employer does not follow their own process the employee could have a claim for breach of contract.
- If the dismissal is discriminatory, which means it arises in consequence of a protected characteristic, then regardless of the length of service a claim can be brought so long as it is within the Tribunal time limit of three months less one day.
- If the dismissal is for making a protected disclosure, also known as whistleblowing, then an unfair dismissal claim can be brought prior to having two years qualifying service.
- If the dismissal is for raising health and safety concerns then an unfair dismissal claim can be brought.
- If an employee is dismissed for raising a statutory right, for example, national minimum wage, then they can claim for unfair dismissal.
- If an employee partakes in a trade union and is sacked for this reason then they can bring a claim for unfair dismissal.
Being sacked without a warning in these scenarios doesn’t mean that you can be sacked without notice. You are still entitled to payments for notice (even if it is paid in a lump sum rather than requiring you to work your notice), your salary to your termination date, and pay for accrued but untaken holiday.
When can’t you be sacked without a warning?
Where an employee has two or more years’ qualifying service and an employer wishes to terminate their contract, they can only do so in line with the statutory provisions under the Employment Rights Act 1996.
Within the ERA there are various potentially fair reasons why an employer can terminate an employment contract. They are conduct, capability, redundancy, some other substantial reason and illegality. Where an employer dismisses an employee for an unfair reason they also run the risk of being liable for “unfair dismissal”.
For each potentially fair reason, certain procedures are required to be followed, if not then an employee may be to argue that the dismissal is procedurally unfair. Employees without two years’ qualifying service will not generally be able to bring ordinary unfair dismissal claims, as above.
The Exception: Gross Misconduct
The only exception, regardless of the length of service, is that an employee can be dismissed without notice where that employee has committed gross misconduct. In those cases, an employee can be summarily dismissed, without notice. Examples of gross misconduct are dependent on the employer (check the contract and handbook for examples), but will always generally include criminal conduct, fraud, assault in the workplace, etc.
However, where an employee is dismissed for gross misconduct without notice, but gross misconduct hasn’t been committed, this could give rise to a further claim for wrongful dismissal, in that there has been a breach of contract in the failure to pay notice.
Do you think you have been unfairly or wrongfully dismissed?
If we can be of any assistance, please contact us and we’d be happy to help and conduct an initial free assessment but act quickly, you have to bring a claim within 3 months from the termination date.
How to get a free assessment?
Just email your dismissal letter and any appeal documents along with a chronology of key dates leading up to the dismissal to firstname.lastname@example.org and one of our team will come back to you with your options.
By Annabelle Oliver and Alicia Collinson