Unfair Dismissal

Unfair dismissal as the name suggests is a dismissal that is unfair, which means the termination of a contract without a fair reason and without a fair process. For it to be ‘fair’ it needs both.

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Unfair Dis

What you need to know…

In Jersey, employees with 52 weeks’ continuous service have a right to not be unfairly dismissed. Employers need to be aware of this right, the protection offered to employees, the risks to employers and how to mitigate those risks. 

Types of dismissal

  • FAIR DISMISSAL - Reasonable and justifiable dismissal, following a fair process (examples provided later in this guide).
  • UNFAIR DISMISSAL - Where a proper process was not followed.
  • AUTOMATIC UNFAIR DISMISSAL - If the dismissal is a result of joining a trade union, asserting statutory rights (e.g. minimum wage) or if they are dismissed on discriminatory grounds.
  • CONSTRUCTIVE UNFAIR DISMISSAL - here an employee considers it is necessary to leave their job because of their employer’s misconduct, for example because the employer is in breach of the employee’s contract of employment.
  • WRONGFUL DISMISSAL - Where the way that the dismissal happens is in breach of the employment contract (e.g. not paying notice)

The following criteria must be met for this to be considered a Constructive Dismissal by Tribunal:

  • The employer must be in breach of the contract of employment
  • The breach must be fundamental i.e. a repudiatory breach
  • The resignation must be a response to that breach
  • The employee must not delay too long in resigning following the breach

What do you need to do...

  • Follow procedure - failure to do so will turn what may have been a fair dismissal into an unfair one.
  • Define ‘reasonable’ work standards clearly.
  • Explain the consequences of failing to meet standards, and what you consider serious misconduct.
  • Deal with any issues during probation and set performance goals.
  • Explain the consequences of continued failure and set time limits for improvement.
  • Have clear policies (disciplinary, capability, grievance) and make sure they are accessible.
  • Provide training and guidance to employees to give them every reasonable chance to fulfil their role effectively.
  • Arrange lighter duties if health is an issue.
  • Counsel employees, discuss options, listen to feedback.
  • Document / evidence conversations.