The law provides protection to employees who have two years or more service from being unfairly dismissed. Therefore, it is very important that employers are aware that they cannot just dismiss employees – they will need to ensure that both the reason for doing so, and the process they follow, are considered fair. This article will discuss unfair dismissal and provide 5 top tips for employers to consider by Adam Wheal, employment law solicitor at Paris Smith.
What are the fair reasons for dismissal?
The first step in dismissing an employee fairly is to dismiss them for one of the following reasons: -
- conduct;
- capability and qualifications (this includes poor performance and ill-health);
- redundancy;
- illegality; and
- some other substantial reason.
An employee might argue that one of the above reasons put forward by the employer to justify their dismissal is not the real reason for their dismissal and may assert that is a ‘sham’. It is therefore for the employer to prove that the reason for the dismissal was in fact the real reason for the dismissal.
What is a fair process?
Employers should be aware that the process they are required to follow for each reason varies.
Employers should also be familiar with and have to hand any relevant guidance, such as the Acas Code of Practice on Disciplinary and Grievance Procedures. This particular guidance applies to conduct and poor performance dismissals and when assessing compensation, a tribunal will take into account whether or not an employer acted in accordance with the guidance.
In light of the fact there is not a ‘one size fits all’ approach to dismissals, five top tips for employers are as follows:
Take advice at an early stage
Employers should look to take legal advice at an early stage where they may be contemplating a dismissal for any of the prescribed reasons. This is because, as highlighted above, the process that an employer should take for each reason varies. Any potential dismissal should be treated with caution and care by the employer to minimise the chance of this being challenged by an employee.
Follow company policies and procedures
As highlighted above, it will be for the employer to prove the real reason for dismissal and to show they followed the appropriate process in relation to it.
Employers should therefore not rush into dismissing employees, and should check whether there is any documentation or policies that can be followed in the particular circumstances, or whether these need updating.
For example, employers should have policies outlining the process that will be followed with an employee in relation to acts of misconduct or gross misconduct, which can ultimately lead to an employee’s dismissal.
Act consistently
If employers follow the above tip, this will help them to act consistently across the board for their employees when dismissing for a particular reason. Of course, employers need to ensure they take each case on its own facts and circumstances, but acting consistently will ensure that there is openness within the organisation and, provided a legitimate reason and proper process has been followed, individual employees are less likely to argue that their dismissal has been unfair.
Provide appropriate training
Employers should ensure that those in managerial positions and those who may be in a position to ultimately dismiss have received appropriate training of the various processes and procedures in place.
Employees should also be aware of, for example, the standards expected of them at work and the process that can be followed if they are found to fall below that expected standard.
Do not underestimate the importance of dismissing fairly
Employers need to be aware of the importance of ensuring they dismiss employees for both a fair reason and after following a fair process. The consequences can be significant if an employee were to successfully claim for unfair dismissal in a tribunal.
Compensation for unfair dismissal is comprised of a basic award (essentially this is the same as a statutory redundancy payment); and then a compensatory award. The maximum compensatory award an employee can receive is the lower of: -
- one years’ pay; or
- the statutory cap (currently £93,878 but this figure changes each year).
