What is unfair dismissal?
The Employment Act (1996), section 94, provides employees with the statutory right not to be dismissed unfairly. A former employee can claim they were dismissed unfairly if they believe that the reason they were given for being let go was either not true or unfair, or the process that they were put through was incorrect. There are many factors that automatically trigger an unfair dismissal, including if the employee was taking part in formal industrial action, pregnancy, whistleblowing, pay and working hours, discrimination, acting as a representative of a trade union, or joining a trade union. A claim can only be brought by an employment tribunal, typically within three months of the date of termination. The statutory right to fair dismissal is only available if employment has lasted for two years or more.
Distinguishing between other forms of dismissal
Unfair dismissal should not be confused with wrongful or constructive dismissal. Wrongful dismissal applies when an employee breaches the terms of their employment contract. Constructive dismissal occurs when an employee resigns following a gross breach of the employment contract by the employer. Unfair dismissal is purely a statutory right and does not relate to the contract, rather to the reason or process of dismissal.
Unfair dismissal does not apply to those who are self-employed, contracting, members of the armed forces, employees who have already reached a settlement through Advisory, Conciliation and Arbitration Service (ACAS), employees taking part in unofficial industrial action, those with an illegal contract, or police officers.
The floodgates of employment claims reopened in 2017
The field of Employment law was dramatically changed on 26th July 2017 following the Supreme Court’s decision in R (on the application of Unison) v Lord Chancellor. It was argued that the employment tribunal fee regime which had been in place since July 2013 was unlawful as those who wished to bring a case before the Employment Tribunal (including unfair dismissal) faced a hearing fee of £1,200. The net effect of this regime had been a 66-70% reduction in claims to the employment tribunal, impeding access to justice for many, often low paid individuals, who had been unfairly dismissed. Following the ruling in the supreme court, the requirement to pay a fee in the Employment Tribunal or Employment Appeals Tribunal was revoked.
The effect of this reversal was seen immediately as between July and September 2017 employment tribunal claims doubled to 30,000.
How to dismiss fairly
Employers faced with the need to let a member of staff go are highly encouraged to follow best practice; and for this, the ACAS guidelines carry a great deal of weight. ACAS states that dismissal should only ever be a last resort, before which the employer should:
- Use informal resolution methods where possible – for matters of conduct or performance
- Be transparent, ensuring that the grievance or disciplinary rules and procedures to be followed are provided – and make sure that the individual understands them
If there is a genuine issue with an employee’s discipline or a grievance has been raised, the ACAS guide on handling discipline and grievance issues is an excellent place to start. It emphasises the importance of consistency, openness, clarity, keeping written records, fairness and how best to handle meetings with employees.
If dismissal is inevitable, it will be deemed fair if:
- the conduct of the employee was not sufficient
- the employee did not have sufficient capability or qualifications to do the job
- the position is made redundant
- there was a statutory duty or restriction which prohibited continuation of the employment
- the employer acts reasonably with regard to the reason for dismissal
It is very important that you truthfully and clearly explain why the employee is being dismissed, and that this is understood. Doing this carefully can make sure that a claim for unfair dismissal is avoided at a later date.
Has your business been accused of unfair dismissal?
There is no doubt that the very best way to avoid appearing before the Employment Tribunal facing a claim of unfair dismissal is to follow the book in the first place. But of course, in the real world, mistakes are made, or facts are misconstrued.
If a former employee has stated that you dismissed them unfairly, you should immediately engage an experienced employment solicitor, who will carefully work through the facts of the case. The cost of losing a claim can be considerable, both financially and to your personal and professional reputation. If the Employment Tribunal agrees with the employee’s version of events (which they do in 81% of cases), they will either recommend a settlement or order you to pay compensation. If there no way to avoid an adverse decision against you, an employment solicitor will help you to weigh up the best option. The option to offer a settlement may be provided by the tribunal in the first instance. This will allow you the necessary time to construct an offering that is accepted by the claimant – however, while the amount may be less than if compensation is imposed, the admission of guilt may provoke other claims in the future. On the other hand, if compensation is ordered, you may end up with a larger bill to pay, especially if the case needs to go on longer.
There can be many grey areas which can add to the complexity of an unfair dismissal claim, e.g. if the claimant was on maternity leave, on probation, or ill. This is why is so important to engage an experienced employment solicitor who will act in your best interests, and will aim to protect the reputation that you have worked so hard to achieve.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced employment law team who can advise and represent you if you face a claim of unfair dismissal. To make an appointment, please call us on 01932 840 111.