Published 4th November 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, 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 dismissed unlawfully?
We can support you from tribunal claims to draft grievances and appeal letters. We know how daunting the legal process can be for employees, we are here to help. We will take off your case from start to finish ensuring you know exactly where you stand.
We can also support individuals by negotiating settlements agreements with your employer to get the best possible outcome for you. We provide these services whilst being completely transparent as possible with you about the legal cost.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs.
If we can be of any assistance, please contact us and we’d be happy to help
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on firstname.lastname@example.org
By Annabelle Oliver and Alicia Collinson