August 21, 2020
Employers need to have a sound working knowledge of the basic tenets of Employment Law. This is nowhere more amply demonstrated than in the area of Unfair Dismissal.
If employers don’t know the difference between what makes a fair dismissal and what doesn't, then that is likely lead to them facing a claim for unfair dismissal on more than one occasion. They are also likely to find themselves on the end of some very costly employment tribunal decisions, paying out hefty sums for both basic awards and compensatory awards.
Having an experienced business employment law solicitor just a phone call away to provide legal advice in this area of law, is not only a source of reassurance, but is also a necessity.
As this article will show, it is often possible to rectify procedural errors that are made during the course of termination of a contract for one of the fair reasons listed below. It is better, however, to have the knowledge not to make the error in the first place. It is hoped that employers reading this article will gain an insight into the correct way to carry out a dismissal.
A dismissal of an employee will be for a fair reason if it is for one of the following 5 reasons:
Even if the reason for dismissal is a fair one, it is important that the employer follows the correct procedure laid down in the employment contract, the company handbook, company policies or procedures or failing that using the ACAS Code of Practice on disciplinary and grievance procedures. Failure to follow the correct procedure could still make dismissal unlawful.
If a dismissal isn’t for one of the reasons above, then it follows that the employee’s dismissal will have been unfair.
Unfair dismissal claims can usually only be brought by employees who have had at least two years of continuous employment with the employer.
The reason for using the word ‘usually’ in the last sentence, is because if an employer dismisses one of their employees for exercising or trying to exercise, one of their statutory employment rights, then this will constitute an automatic unfair dismissal.
No period of continuous employment needs to have been worked for an unfair dismissal claim to be brought in any of the circumstances where an act of automatic unfair dismissal has occurred.
The Employment Rights Act 1996 is the guiding piece of legislation when it comes to automatically unfair dismissal.
There are about 60 automatically unfair reasons for dismissal. Here are a few examples where if an employee is dismissed for any of the reasons outlined, it will constitute automatically unlawful dismissal:
Employers need to beware.
No. It’s still possible for an employer to dismiss an employee on the grounds of one of the five fair reasons for a dismissal, only for an Employment Tribunal to decide that the employer has acted unreasonably in treating that reason as sufficient for the dismissal.
A Tribunal must decide whether the employer was reasonable in dismissing an employee for the reason of conduct, capability, redundancy, illegality or SOSR, in accordance with equity and the substantial merits of the case.
The test is an objective one, with each case turning on its own facts. An employment tribunal must decide whether:
It is not for the tribunal to ask itself the question:
“If the employee did what is alleged, what would it, the tribunal have done?”
The tribunal’s job is to decide whether the employer’s response to an incident that potentially constitutes a fair reason for dismissal, is of itself the kind of response that falls within the range of responses that a reasonable employer would make.
If after reading this article you would like to discuss any aspects of Unfair Dismissal or any other area of Business Employment Law, our employment law team at Spencers solicitors would be delighted to hear from you. You can call us on 0808 274 5269 or leave your contact details and we’ll get straight back to you.
Posted in: Employment Law