The law gives five potentially fair reasons for dismissal, including breach of a statutory duty or restriction and some other substantial reason capable of justifying dismissal. The most commonly used reasons are redundancy, capability and misconduct.
Even if your employee is guilty of misconduct or their job is clearly redundant, you still need to take care when dismissing. An employment tribunal will also decide if the dismissal was fair in all the circumstances.
As Liz Pollock, employment law expert at Raworths explains, it is crucial that employers follow the right steps to ensure dismissals are fair or the employee could bring a successful claim for unfair dismissal. In this article Liz highlights pitfalls to avoid and ways businesses can minimise risks.
When deciding if it was fair and reasonable to dismiss the employee, employment tribunals examine the procedure followed by the employer. If the procedure is unfair, the dismissal is almost always unfair. What makes a procedure fair will vary depending on the reason for the dismissal.
If the tribunal finds that the dismissal was unfair, the tribunal may order that the employee should be allowed to come back to work. More commonly, tribunals award compensation to the employee.
When dismissing someone for misconduct or poor performance, employers must follow the Acas code of practice on disciplinary and grievance procedures. If not, the tribunal may increase the employee’s compensation by up to 25%.
A fair process can also protect you from the employee resigning and claiming constructive unfair dismissal during the process. Procedural failings such as delays, an inadequate investigation and not giving the employee a clear picture of the allegations against them, may entitle the employee to resign and claim constructive dismissal.
Usually, employees have the right to bring a claim for unfair dismissal once they have two years’ continuous service. However, from the first day of employment, employees are protected from dismissals for certain reasons.
Even if the employee has less than two years’ service, they can still be protected from dismissal for a host of reasons. There are too many to list here, but these include reasons such as whistleblowing, taking time off for an antenatal appointment or trade union membership. Employees are also protected from a discriminatory dismissal for a reason related to a protected characteristic such as gender, race, disability or sexual orientation.
If the employee has almost two years’ service, before dismissing, make sure that you consider the notice periods. If you dismiss the employee without giving notice, one week’s statutory minimum notice can be added on to the date of dismissal. This may be enough to give them protection from unfair dismissal.
Employers are sometimes caught out where they assume that an individual is a casual worker or a contractor who does not have the right to bring a claim for unfair dismissal. After ending the working relationship with the individual, they may claim that they were in fact an employee and bring a claim.
Our employment law team can advise you on minimising risks and guide you through the dismissal process. Please contact Liz Pollock in the Employment team on 01423 566666 or email firstname.lastname@example.org
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Published on 15 March 2022