All too often we read about Day Nursery and Pre-school employers being told, don’t worry you can dismiss that person, they have under 2 years’ service. There’s nothing they can do about it.
In the UK, we have what are classed as ‘automatically unfair’ reasons, this is where the dismissal is connected with the employee exercising a specific right.
If you dismiss someone for an automatic unfair dismissal they will win an Employment Tribunal so you need to take note.
Here’s the list and what they mean in Early Years.
- Pregnancy, including all reasons relating to maternity. Therefore dismissing someone because they’ve told you they are expecting or believe they are expecting, dismissing someone who is on maternity leave without following a fair and proper process will always be an automatically unfair dismissal.
- Family reasons, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependents. Therefore dismissing someone who has lost time for parental leave, paternity leave, adoption leave, will always be automatically unfair. Employer’s must tread carefully and make sure they follow a fair and consistent process. An employee has the right to time off for family emergencies not to be the carer following an emergency. There’s a difference.
- Representation including acting as an employee representative. So where you don’t recognise unions this may not apply.
- Trade union membership grounds, and union recognition. Remember all employees can join a union and do not need to tell you, when they do you can’t dismiss them because of their membership.
- Part time and fixed term employees- they can’t be selected for redundancy because they are part time.
- Pay and working hours, including the Working Time Regulations, Annual Leave and National Minimum Wage. Can’t dismiss someone because they complain to the authorities about any of the above.
- Whistleblowing – so complaining to Ofsted and then being dismissed for it is automatic unfair dismissal.
When is a dismissal fair then?
Dismissals are normally fair if an employer can show that it is for one of the following reasons:
- A reason related to employee’s conduct
- A reason related to an employee’s capability or qualifications for a job.
- because of redundancy.
- Because of a statutory duty or restriction, which prohibits employment continuing (i.e. illegal working)
- Some other substantial reason of a kind which justifies the dismissal.
In addition the employer must always act reasonably and the reason for the dismissal should be in the range of reasonable responses.
If you need any assistance with understanding how this relates to you as an employer in Early Years please give Emma and I a call on 01527 909436.