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Making a fair dismissal and dealing with unfair dismissal disputes : Guide for employers
All employers are faced with dismissing an employee from time to time. The process must be carried out correctly and seen to be fair, regardless of the employee’s conduct leading to the dismissal. It is essential to be aware of how to conduct the procedure and to meticulously follow all the steps required to avoid having to deal with a claim for unfair dismissal.
In this guide we provide guidance on fair dismissal, including outlining the reasons that a dismissal is automatically unfair. As well as how to deal with a challenge an employee may make to their dismissal.
In this guide:
Outlining what is meant by a fair dismissal procedure and the fair reasons for dismissal.
The automatically unfair reasons for dismissal.
A guide to making an employee redundant.
What to expect
Giambrone & Partners can assist you in dealing with an unfair dismissal claim and making an employee redundant.
What is a fair dismissal?
A dismissal is “fair” if the employer shows that the reason for the dismissal was one of the five fair reasons for dismissal and that the dismissal was managed in a reasonable way. If an employer uses an automatically unfair reason for dismissing an employee, this will not count as a fair procedure, and is likely to be challenged. If an employee challenges a dismissal, the employer must demonstrate a valid and fair reason for the dismissal at the Employment Tribunal.
Automatically unfair reasons for dismissal which allow an employee to challenge a dismissal
It’s always ”automatically unfair” if an employee was dismissed because they:
- Are pregnant or on maternity leave.
- Have asked to invoke a legal right at work – for example, to be paid minimum wage.
- Took action regarding a health and safety issue.
- Work in a shop or a betting shop and declined to work on a Sunday.
- Are a trade union member and took part in trade union activities including official industrial action or acted as an employee representative.
- Have reported an action or procedure which amounts to whistleblowing.
What is constructive dismissal?
Constructive dismissal occurs when an employee resigns following an event or series of events that the employee considers compromises their ability to remain in the workplace.
Reasons employees may claim constructive dismissal can include:
- An unexpected reduction to their wages without agreement.
- Being demoted without a justifiable legal reason.
- Being harassed, bullied or discriminated against by colleagues
- Unreasonable increase in their workload.
- The location of their workplace has been changed at short notice.
- Having to work in dangerous conditions.
How to fairly dismiss an employee
An employee can be fairly dismissed by the following the steps below:
- Ensuring that you have a comprehensive disciplinary procedure that all staff are aware of and following the procedure if an employee has behaved in an unacceptable manner.
- Make contemporaneous notes when discussing the employee’s behavior and compile evidence to support the reason for dismissal.
- Ensure you have a valid reason for the employee’s dismissal. 4. Take care not to discriminate. Read when a reason for dismissal may class as discrimination and face a discrimination claim here.
- Invite the employee to a disciplinary meeting and give the employee an opportunity to explain their behavior and if appropriate, allow a period of time for the employee to improve their conduct.
- Following a disciplinary meeting, communicate the outcome and your reasons for your decision to the employee.
- Remind the employee of their right to appeal.
- Follow up the meeting in writing.
Should I dismiss an employee or make them redundant?
An employee can only be made redundant if their job is no longer required - for example, if there has been a restructure or merger and their job no longer exists. In this event, dismissal is no reflection on the employee’s abilities. This differs from dismissing an employee for reasons of conduct or competence. more about how to make an employee redundant here.
Dealing with an unfair dismissal claim
If an employee believes that they have been the subject of a wrongful dismissal they can appeal through your business’ appeal process. It is your responsibility to tell employees how to appeal a dismissal. The employee may want to speak to their trade union if they have one or get legal advice.
If the employee has made an appeal through your internal appeal process and was unsuccessful and wants to take it further, they may make a claim to the employment tribunal. A claim for an unfair dismissal case must be made within three months less one day of the dismissal.
An employee usually has the right to make an unfair dismissal claim to an employment tribunal if:
- They have 'employee' employment status.
- They've worked for their employer for two years.
If an employee has been dismissed for an 'automatically unfair' reason, there is no time limit on their employment, it does not matter how long they've worked for their employer.
An employer facing a claim for unfair dismissal should seek legal advice from experience employment lawyers to manage the claim, who will assist you in gathering the evidence for making the dismissal and will support you every step of the way.
When should you consider a settlement agreement?
Any claim at the employment tribunal is time-consuming and costly. A settlement agreement can offer a quick alternative to defending a claim at the tribunal. If a settlement agreement can be arranged the employee waives all employment law claims and the terms of the settlement will be confidential. We can advise you on when a settlement agreement may be the best option for you.
Contact Giambrone & Partners for assistance
The employment team at Giambrone & Partners are highly experienced in advising employers dealing with a range of employment-related claims, including redundancy disputes, unfair dismissal, and discrimination.
Our lawyers will work on your behalf to ensure that any dispute is dealt with quickly and efficiently enabling you to return to running your business as soon as possible.
We are strong advocates of alternative dispute resolution in employment disputes and have already helped many businesses resolve disputes before they escalate into tribunal hearings. We will aim to resolve disputes quickly using ADR to avoid lengthy litigation. If a matter cannot be settled and goes to the employment tribunal, we can represent you at the hearing. Find out more about how we can help, or contact us today for assistance.
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