In England and Wales, dismissing staff in this way would likely lead to several unfair dismissal claims. Although in the current Covid climate, terminating an employee remotely may be a sensible choice, as an employer, being sensitive to the team member’s health and wellbeing and respecting their dignity must be first and foremost in your mind.
Employers have enough to manage without adding an unfair dismissal claim into the mix. Furthermore, the backlog of Tribunal hearings resulting from the 2020/early 2021 lockdowns means hearing dates are now stretching out to 2023. For this reason, you must do everything possible to avoid an unfair dismissal claim being brought against you. In this article, we explain the steps you can take to prevent an unfair dismissal claim.
What is meant by ‘unfair dismissal’?
Under the law of England and Wales, there are five potential reasons for dismissing someone fairly. These are:
- conduct –the employee has done something improper or unacceptable
- capability –the employee is not able to do the job or does not have the right qualifications
- redundancy –the job is no longer needed
- a legal reason –the employee cannot legally do their job, for example, they are a taxi driver and the Court has banned them from driving
- 'some other substantial reason' – a term used for a wide variety of other situations, for example, a fixed-term contract has ended or there is a serious personality clash that is affecting productivity
You must carry out the dismissal according to your company’s formal disciplinary or dismissal process for the dismissal to be deemed fair.
The right to bring a claim against an employer for unfair dismissal is only available to those who have already been dismissed and, in most cases, have been with the organisation for two or more years (this is referred to as the qualifying period). This qualifying period, however, does not apply if an employee is dismissed for an ‘automatically unfair reason’.
Automatically unfair reasons include (but are not limited to) dismissal for:
- pregnancy and all reasons related to maternity
- health and safety reasons
- acting as an employee or trade union representative
- taking part in protected industrial action
- whistleblowing
- taking time off for family emergencies or to take care of dependents
What can employers do to avoid an unfair dismissal claim being brought against them?
To help you avoid unfair dismissal claims, our specialist Employment Law Solicitors have provided the below five steps you can implement immediately:
- Have clear and comprehensive disciplinary policies and procedures in place. These should be easily accessible to all line managers. They should outline what is meant by unfair dismissal and the consequences if a claim is brought. Training on how to correctly dismiss employees should be regularly carried out.
- It is advisable to undertake a fair and open review of internal attitudes in terms of equality discrimination. By asking staff members across your organisation for their feedback in a discrete and protected manner, you will be able to identify any areas of your business, including specific teams and individuals which may expose your organisation to future claims. Based on this feedback, new policies, procedures, and training can be put in place, and where necessary disciplinary action.
- Have a top-down culture of fair, open, and honest communication within your business and follow the Acas Code of Practice on disciplinary and grievance procedures. Always allow the employee to present their side of the story and document how you have considered their comments.
- If you are conducting a disciplinary hearing you must allow the employee to have a representative present and inform them of that right. Furthermore, you need to allow the employee and their representative time to consult together, and this time should be paid.
- If a decision is made to dismiss an employee, ensure they have a right of appeal and are informed of this right. If your business is small, keep one manager or director out of the investigation and dismissal process so they can conduct a fair appeal. This is important as the Employment Tribunal may penalise you more severely for conducting an unfair appeal than for not conducting one at all.
Final words
Unfair dismissals can be avoided by taking a consistent and firm approach with those who have the authority to make decisions that could result in an unfair dismissal claim by a former employee. Such claims are not only damaging reputationally, but they also harm the team morale and prevent staff from being able to focus on performing at their best. By creating a culture of respect, fairness, and openness, and having clear policies and procedures in place, you can mitigate the risk of future unfair dismissal claims.
Get legal assistance from LawBite
As an employer, you need to have detailed and up-to-date employment contracts in place, and show that you have followed the correct procedures laid out in these contracts fairly and competently.
If you are navigating a situation in which dismissal is a potential outcome, you need to ensure you are following all procedural steps.
At LawBite our expert employment lawyers are ready to give you the advice you need and guide you through the process in order to avoid tribunal claims.
