Unfair Dismissal

Unfair Dismissal – Advice for Employers

As a dedicated team of employment law solicitors we defend many claims to Employment Tribunals every year on the basis of the dismissal of the employee being unfair.

If the tribunal makes a finding that the employee has been unfairly dismissed it will, in most cases make an order for compensation to be paid by the employer to the employee. This compensation is to replace income lost by being dismissed and is limited to a basic award calculated in the same way as a redundancy payment and a compensatory award for income actually lost.

What amounts to an Unfair Dismissal?

Generally employees must have been employed by the employer for an uninterrupted period of 2 years before they can bring a claim for Unfair Dismissal.

The dismissal of an employee will be unfair unless:

  • The employer can show that the reason (or principal reason) for the dismissal was a potentially fair reason.
  • The tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal. This has been interpreted by the courts and tribunals as meaning that the dismissal must be both “procedurally” and “substantively” fair.

The Acas Code of Practice sets out recommendations as to the procedure employers should adopt prior to dismissing an employee for misconduct or poor performance, and must be taken into account by tribunals in deciding whether an employer has acted reasonably.

If an employment tribunal finds that the dismissal is unfair, it can order the employer to re-engage or reinstate the employee or pay the employee compensation.

When Employment Tribunals were first established they were designed to be easy to bring a claim in with the procedure being as simple as possible. Unfortunately that is no longer the case and Employment Tribunal claims are getting more complicated all the time. We are experienced in bringing claims and will sympathetically guide you through the mine field that tribunals can be for the unwary.

For employers wanting to avoid employment tribunal proceedings it is very important to take advice and take your time in relation to dismissing or thinking of dismissing employees. While it can be evidence of procedural unfairness to delay too long there is no need to rush. Where there is a suggestion of misconduct or gross misconduct the first step is to suspend the employee on full pay.

The basic steps are:

  • Investigate
  • Suspend
  • Investigate further.
  • Hold investigative interview with employee
  • Give employee notice of disciplinary hearing and of the right to be accompanied.
  • Hold disciplinary hearing
  • Make decision and if a sanction imposed tell employee of right to appeal.
  • Hold appeal hearing.

There are a number of potentially fair reasons for dismissal, these are:

  • Employee not doing job properly;
  • Persistent or long term illness making it impossible to do job;
  • Redundancy;
  • Misconduct including gross misconduct;
  • If employing the employee would break the law;
  • Some other substantial reason.

The Procedure

Claims in the employment tribunal are started by the employee submitting an Early Conciliation form to ACAS who then have 30 days to attempt to reach a settlement. ACAS will contact the employer and we can be of assistance at this early stage in trying to resolve the issues and perhaps prevent the claim from going any further.  If no settlement is possible proceedings are started by the employee completing a form ET1.  This document sets out details of the name and address of the person bringing the claim, details of who the claim is against, usually the employer, and a brief outline of what the claim is about.

The tribunal sends the ET1 to the employer who has28 days to submit a written response to the tribunal which then sends it to the claimant. .  It is very important that the details of the response, known as an ET3 are carefully considered and set out exactly what has happened and why the claims are opposed.  It is very important that the employer’s response is correct and as experienced employment solicitors we would advise that we should deal with this for you.  If the employer gets it wrong it could result in large parts of the response not being considered by the tribunal

The tribunal then sets a hearing date. This date will usually not be changed unless there are good reasons for doing so.

At the hearing both sides give evidence on oath.  The tribunal will have ordered that witness statements are exchanged on a date before the hearing and that a bundle of all the documents to be considered has been prepared.  It is very important that the statements are prepared properly and as experienced employment solicitors it is important that we deal with that on the employer’s behalf.

After hearing the evidence the tribunal will make its decision.

For further information please contact our Employment team on 0800 088 6280 or email enquiries@rotherasharp.co.uk