How To Avoid Unfair Dismissal Claims
Being sacked from your job can come as a huge shock and it often feels unfair.
As an employer, you need to make sure that the dismissal is thoroughly thought through beforehand, and it isn’t a spur of the moment retaliation to an employee’s actions. There are several reasons that an employee can be officially and correctly dismissed, but there are a number of grey areas which may cause area for concern.
ELAS Legal Consultant, Liam Grime, explains on what grounds employers can dismiss an employee, and how to avoid tribunals from an unfair circumstance:
“Dismissing an employee can sometimes feel like a daunting or difficult task for employers, even more so for small businesses with little or no knowledge of employment law or access to an internal HR function. I put this together to provide guidance which will help you avoid such claims by explaining the best practice approach and giving you an understanding of what constitutes an ‘unfair’ dismissal.” “The right to claim unfair dismissal is afforded by s94 Employment Rights Act 1996 to employees with over two years’ continuous service.” “When considering ways in which to avoid a claim for ‘unfair’ dismissal, one must first understand the ways in which a dismissal can be deemed ‘fair’ in the eyes of an employment tribunal and s98(2) ERA 1996 provides five ‘potentially’ fair reasons for dismissal. These are: conduct, capability, legality, redundancy or some other substantial reason.” “Conduct is a potentially fair reason where the employee’s behaviour has been seriously unacceptable, for example the employee has committed theft of the employer’s property.” “Capability as a potentially fair reason for dismissal would be where the employee does not have the right skillset or ability to carry out their duties. Being off sick frequently or for a prolonged period could also justify a dismissal on the grounds of capability however employers should take into consideration that long-term sickness could be due to a disability, which is a protected characteristic under the Equality Act 2010, and therefore dismissal may be of a higher risk as a disabled employee may feel discriminated against and attempt to bring a claim of discrimination too. In any event employers should look at further training, alternative employment and reasonable adjustments before a dismissal on capability grounds.” “Legality would be a potentially fair reason to dismiss where it is illegal to continue the employment relationship. For example, where an employee loses the right to work in the UK.” “Redundancy comes with its own set of rules and procedures but could be a potentially fair reason for example where there isn’t enough work, or the employer is shutting down the business.” “Some other substantial reason as such as a company restructure would be a potentially fair reason for dismissal however this reason should be used carefully as the employer will be expected to show that the reason for dismissal was ‘substantial’.” “However, the existence of a possibly fair reason does not automatically make a dismissal fair and the employment tribunal would also look to determine whether the employer acted reasonably in their dismissal of the employee, namely with substantive and procedural fairness.” “Substantive fairness is concerned with whether the dismissal was ‘within the band of reasonable responses’, as clarified in Iceland Frozen Foods v Jones , and whether the dismissal took place based on an analysis of the facts of the case that were found at the time of the dismissal. Therefore, before making the decision to dismiss, employers should be confident that dismissal is a reasonable response to the offence committed by the employee and that they are dismissing based only what information and facts were available to them at the time of dismissal taking place, taking no consideration to any misconduct that was discovered after the dismissal.” “Employers who were also procedurally fair when dismissing an employee are more likely to avoid having to pay out compensation for a claim of unfair dismissal and employers can ensure that they have been procedurally fair by demonstrating that they have carried out as much investigation as was reasonable into the matter in relation to the circumstances of the case. Procedural fairness is also concerned with whether the employer has followed the ACAS Code of Practice in carrying out the dismissal. The code of practice sets out a discipline procedure, for example, in that the employee must be given at least forty-eight hours’ notice of the disciplinary hearing, the right to be accompanied to the hearing by a trade union representative or colleague, and the right to appeal the decision of the disciplinary. Although it does not provide any legal force, it does provide persuasive evidence before and employment tribunal when determining whether a dismissal was fair. Therefore, employers can help themselves avoid claims for unfair dismissal by also following the ACAS Code of Practice and ensuring that a proper investigation has been carried out. Failure to follow the ACAS Code risks a finding of procedural fairness and can result in an increase in compensation by up to 25%.” “The maximum compensatory award for unfair dismissal is the lower of £83,682 and 52 weeks’ pay.” “If you are faced with a case where dismissal may be an option, employers should always seek advice in any event.”
It’s important to remember that dismissal isn’t the only option available for problem employees. If you don’t wish to dismiss a member of staff or make them redundant, there are several other options at your disposal.
Examples include a temporary lay off (if their contract enables this), short time lay off if they can see the workload picking up again at some point in the future, restructuring the company to offer the employee a new role within the brand or retraining to make the employee more beneficial to the company.
As legislation changed in 2017, and claims are up by 165% in comparison to this time last year, it’s more important than ever to make sure that you’re protected and are dismissing employees for all the right reasons, whilst following protocol. If you’re conscious that you may not have followed the correct protocol, contact a member of our team today on 08450 50 40 60.