What is an unfair dismissal?

An unfair dismissal claim is heard in an Employment Tribunal. Whilst Employment Tribunals are still referred to as 'industrial juries', the way in which an Employment Tribunal determines an unfair dismissal claim may be different to how it is thought they do.

Generally, unfair dismissal claims require that the employee has two years' continuous service. However, there are exceptions, and these exceptions include where an employee complains of a health and safety concern and is dismissed, becomes pregnant or makes a protected disclosure (whistle-blowing). These are known as 'automatic unfair dismissals' and an employee does not have to have any minimum period of service to bring such a claim.

Outside of automatic unfair dismissal claims there are 5 permitted reasons for an employer to dismiss an employee. These include:

• Redundancy
• Conduct
• Capability
• Statutory legality or breach of a statutory restriction
• Some other substantial reason

When considering an unfair dismissal claim, what at an Employment Tribunal does not do is to decide what the Employment Tribunal would have done in the employer’s situation but rather whether the employer behaved reasonably, and that the disciplinary sanction was within a range of reasonable decisions.

The test for unfair dismissal claims in misconduct cases is set out in the case of BHS v Burchell and is a three-stage test:

1. Did the employer genuinely believe the employee was guilty of the alleged misconduct?
2. Did the employer have genuine grounds to suspect that the employee was guilty of misconduct?
3. Did the employer carry out a reasonable investigation before making a final decision about the employees' guilt?

Everything turns on a thorough investigation, which will include interviewing and taking statements from any relevant witness and then forming a reasonable belief on the facts of the investigation. Having carried out a thorough investigation an employer must then invite the employee to a disciplinary hearing before which the employer will have sent the employee all relevant documents upon which it wishes to rely and informed the employee of their right to be accompanied at that meeting by a Trade Union representative or a work colleague. An employee does not have the right to be accompanied by a family member although if the employee is particularly vulnerable, either through suffering from a disability or because they are young, an employer may be inclined to allow that.

A disciplinary hearing should then take place at which the allegations are put to the employee and the employee is given a fair chance to respond. If the employee brings up new information, then further investigation should take place. Otherwise, a letter should be sent to the employee setting out the findings, the sanction and advising the employee of their right to appeal. The appeal hearing is generally carried out by a more senior manager than the one who heard the disciplinary hearing.

The sanction will have to be appropriate and 'within the range of reasonable responses' (Iceland Frozen Foods v etc). To give an extreme example, an employee with several years’ service should not be dismissed for one occasion of lateness. However, and again, the Tribunal will not interfere in an employer’s decision if that decision falls within the ‘range of reasonable responses. There will be situations where one employer will issue a final written warning, and another will dismiss. The Employment Tribunal’s role is not to determine whether it would have issued a final written warning or to have dismissed but whether dismissal was within the range of reasonable responses.

Legal advice should be taken at each stage of the disciplinary process and particularly when dismissal is contemplated. Also, a poorly worded letter to an employee could well give rise to a successful unfair dismissal claim.

At Spencers we have many years' experience in advising upon what a Tribunal will find fair and unfair, as well as drafting an appropriate response at each key stage of the process. We are able to help you navigate through what can be a confusing and easily misinterpreted process minimising any costly wrong moves and mitigating risks along the way.

Still confused? Get in touch! Whether you are an employer or employee needing advice on a possible unfair dismissal claim, get in touch with our Employment Team for a no obligation discussion.