See the Answer is the explanation
Explanation:
Overall explanation
Below you will find how you can plan and draft the essay. Remember this is an example of one way you could approach the question. At Level 6 the questions are much more open so your response may be completely different and that's okay.
Essay Plan
Introduction - complex area of law
Section 1 - each type of dismissal, explain and example
Section 2- what they should do; use internal channels first, seek advice (union / Citizens Advice), mediation, litigation via Employment Tribunal.
Example Essay
Employment termination is a complex area of employment law, and different types of dismissal carry distinct legal implications. In the United Kingdom, where employment law is well-established, employees are entitled to certain rights and protections when facing dismissal. This essay explores various types of dismissal, including fair dismissal, unfair dismissal, summary dismissal, constructive dismissal, and redundancy. It also discusses how employees should respond if they believe they have been unfairly dismissed.
Types of Dismissal:
Fair Dismissal: Fair dismissal occurs when an employer terminates an employee's contract with valid reasons that are recognized by law. Common grounds for fair dismissal include misconduct, lack of capability and statutory reasons. For example, an employee consistently failing to perform their job despite adequate training and support may be fairly dismissed for capability.
Unfair Dismissal: Unfair dismissal, on the other hand, happens when an employee is terminated without valid reasons or if the employer fails to follow the correct dismissal procedures. Employees with at least two years of continuous service have protection against unfair dismissal. For example if XYZ Ltd fire Employee X who has worked at the company for 5 years because there is a personality clash between them and the management, Employee X could claim unfair dismissal (personality clash is not a valid reason for dismissal).
Summary Dismissal: Summary dismissal, often referred to as instant or gross misconduct dismissal, occurs when an employer terminates an employee's contract without notice due to severe misconduct. It typically involves serious breaches of workplace rules or the law. For example if an employee is caught stealing, they may be fired on the spot without notice.
Constructive Dismissal: Constructive dismissal occurs when an employee resigns from their position due to an employer's fundamental breach of the employment contract, creating an unbearable working environment. An example of this is if the employer fails to provide the worker with the correct PPE to complete the work (for example in the Construction industry). Because the employee is unable to complete the work safely, they resign. In this instance, the 'blame' is put firmly on the fault of the employer for 'making' the employee resign.
Redundancy: Redundancy takes place when an employer dismisses an employee because the job role they held no longer exists, or the employer's business needs to reduce its workforce. Redundancy dismissals must adhere to specific procedures and fair selection criteri a. In the UK this is referred to as TUPE.
If an employee believes that they are being fired unfairly they can claim unfair dismissal. Firstly, they should initially consider raising their concerns internally through the company's grievance procedure. This allows for a formal process where grievances can be investigated and addressed. This is particularly useful in large organisations where workers may be fired by middle-managers who are not properly trained or aware of the legislation regarding this area. By raising a concern through a grievance policy, it allows the right people in the company such as HR or the senior leadership team, to fully assess the situation.
Secondly, the employee should seek advice from an organisation such as Citizen's Advice or their workers' union. They will be able to advise if the situation does amount to unfair dismissal. Getting a third party involved can help to bring in a new perspective and keep discussions positive and moving forward.
If it is believed that the unfair dismissal has merit, employees can contact ACAS (Advisory, Conciliation, and Arbitration Service) for early conciliation. ACAS may facilitate settlement discussions between the employee and employer to avoid legal proceedings. If internal processes and ACAS conciliation do not resolve the matter, employees can file a claim with the Employment Tribunal within specified time limits, asserting unfair dismissal. The time limit to claim is currently 3 months minus a day from the date you were dismissed. Employees may seek legal advice and representation during Employment Tribunal proceedings to ensure their rights are protected and they receive appropriate compensation if the claim is successful.
In conclusion, various types of dismissal exist, each with distinct legal implications. Employees should be aware of their rights and protections under UK employment law, particularly concerning unfair dismissal. It is important to remember that 'employment rights' in the UK are only granted after 2 years of service, and this is often a big factor when looking at this area of law. It is important for all employees in the UK to understand these types of dismissal as having appropriate responses empowers employees to seek redress when faced with unjust termination.