The dismissal of an employee is the most severe employment law sanction an employer can use.
Contrary to an “ordinary” termination, the employee will immediately have to stop working, leave the workplace and will not be entitled to receive a salary or other payments from the time of the dismissal.
Because it is such an far-reaching sanction, dismissal is subject to strict requirements to justify its use. As an employer, you must therefore be careful about when you choose to dismiss an employee instead of terminating him or her.
At Advokatgruppen, we can help you quickly assess whether a dismissal is justified and execute the dismissal.
Conditions for the justification of the dismissal
There are several pitfalls to consider for the employer when dismissing an employee.
The basis for the dismissal
First, the employee in question must have behaved in such a way that a dismissal can be justified at all. Typically, this will have to be a case of gross or repeated breach of the employment relationship.
Suppose the dismissal is triggered by a repeated breach of the employment relationship. Then it will most often be a requirement that the employee in question has previously received at least one warning and thus been notified of the potential dismissal in case of a repeated breach.
In the event of a single gross breach of the employment relationship. Employees may, in some cases, be dismissed solely based on the single breach. A dismissal on the basis of one single breach without prior warning is subject to strict requirements regarding the severity of the breach. As such, this type of dismissal is most often used in the case of the employee’s conduct of business in competition with the employer, embezzlement, theft from the workplace or the like.
Inaction
As an employer you must react as quickly as possible to an employee’s breach of the employment relationship.
Some strict rules have been shaped through case law on the employer’s inaction in connection with dismissals. The requirement is that the employer reacts in immediate connection with the employer becoming aware of what justifies the dismissal. If you do not act in time, you run the risk that the dismissal will be found to be unjustified, regardless of whether the actual grounds for dismissal are sufficient.
Consultation of the employee
If you are faced with expelling an employee, it can be imperative to hear the employee first. So, you avoid any misunderstandings or overlooking excusable circumstances. Failure to consult the employee may in some cases lead to the dismissal being considered unjustified even if the grounds for dismissal are in themselves sufficient.
