Unfair dismissal from the employer’s perspective

For any employee who started work for you after 6th April 2012 they will only be able to claim unfair dismissal once they have had at least 2 years continuous service with you. This period is 1 year of continuous service if the employment was commenced prior to 6 April 2012. In some cases, a

Home » Employment law » Unfair dismissal from the employer’s perspective

For any employee who started work for you after 6th April 2012 they will only be able to claim unfair dismissal once they have had at least 2 years continuous service with you.

This period is 1 year of continuous service if the employment was commenced prior to 6 April 2012.

In some cases, a claim for unfair dismissal may be accepted by the Tribunal, reasons for a claim outside of these time limits being accepted by the Tribunal include where the dismissal is for an ‘inadmissible’ reason or where it relates to an assertion of a statutory employment right.

How much can it cost an employer if there is an unfair dismissal?

If the Tribunal finds against you for a claim of unfair dismissal, you may be liable for a compensation award which would include a basic award (maximum currently stands at £12,900 and a compensatory award (maximum currently stands at £72,300). It is only in extreme cases that unfair dismissal awards reach the top end of these spectrums. The Tribunal will look at the reasons for the dismissal and the behaviour of the employer in dismissing the employee.

Other options that an employee might seek at the Employment Tribunal include reinstatement or re-engagement.

What is a fair dismissal?

The most effective way that an employer can ensure that an employee cannot bring a claim for unfair dismissal is to ensure that there was a ‘fair’ reason behind the dismissal. There are 5 statutory ‘fair’ reasons which lawfully justify a dismissal, these are:

  • Employee’s conduct;
  • Capability or qualifications of the employee;
  • Illegality;
  • Redundancy; and
  • A ‘substantial reason’.

As an employer you should be aware that in general terms the law is quite favourable to you when you decide to dismiss. Your decision needs to be within a “range of reasonable responses” which is the legal test. An employment tribunal’s role is not to second guess your decision or to ask itself what it would have done in your situation. As long as your decision is within a  band of reasonable responses an employer might take a decision within, you will not have unfairly dismissed the employee, subject to following fair procedure before dismissing and in allowing an appeal (see below).

Procedure important before dismissing an employee

If a case went to the Employment Tribunal and you were claiming that you dismissed an employee for a ‘fair’ reason, it must be able to be shown that you had followed established acceptable procedures and the starting point for this will be by ensuring you comply with your own contracts of employment or staff policies. If you don’t do this, you are asking for trouble in legal terms. Another good reference point for ensuring you comply with good procedure is always by checking the latest guidance from ACAS who provide comprehensive guidance on how a Company’s disciplinary and grievance procedures are to look.

Be aware that even if you are found to have a justified reason for dismissing an employee if you do not follow a fair or adequate procedure, this can also amount to unfair dismissal and this is a common pitfall which small employers get wrong.

Although the Tribunal have clearly laid out what the ‘fair’ reasons are to be, it can get complicated as to what would constitute an action being able to be banded in with one of these ‘fair’ reasons. Complications can arise in relation to dismissals for long-term sickness of an employee, an employee lying about their qualifications and wearing appropriate clothing in the workplace. These are all potentially ‘fair’ reasons but the processes used by you will have to be stringent to avoid criticism by the Tribunal.

References after dismissal

 If you have dismissed an employee, you are not required by law to give them a reference for any future employment, however, it is recommended to simply give them a factual reference with the dates of their employment and the position of the employee. However, you may be liable to a claim of victimisation if a reference is not given after a claim has been brought by the employee against you and the reason for the non-giving of the reference is the claim that has been brought.

As an employer, you owe a duty of care to your ex-employee to ensure that the reference is accurate, not misleading, prepared carelessly or negligently. It is also worth noting that you potentially owe a duty of care to the potential employer as well and if they suffered loss due to the inaccurate reference then you may be liable.

ben_jonesFor advice on disciplining or dismissing an employee which is cost effective, practical, reassuring and based on experience, please get in touch.

Employment law • Jonathan Green

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