Unfair Dismissal

Unfair dismissal is the area where our team of specialist Employment Lawyers get involved most often on behalf of employers and can become a very expensive minefield when employers get it wrong.

Until employees have more than two years service they only receive protection from unfair dismissal in very certain circumstances (for example where they have whistle blown). After two years service they get phenomenal protection and can only be dismissed for one of five statutory reasons and a fair process must be followed. The five potentially fair reasons are;

1. Performance
2. Misconduct
3. Redundancy
4. Illegality
5. Some other substantial reason

Performance and misconduct are the most common and there can be significant overlap between them. Performance issues often surround the day to day role of the individual and their not achieving the targets or objectives set. Often the first step will be to speak with the employee to ascertain the reasons and then work through a performance improvement plan to try and resolve the issues raised. 

Misconduct tends to focus on one off serious issues, perhaps fraud, fighting, dishonesty or discriminatory conduct but also less serious issues such as persistent lateness or absence and insubordinate behaviour. This would lead to a disciplinary process which should comply with the ACAS Code of Conduct.

Redundancy arises where a business closes down, a place of work closes down or a business requires fewer employees to undertake work of a particular kind. Depending on the number of staff potentially being made redundant it may be necessary to undertake a normal redundancy consultation or a collective consultation.

Illegality is the least common of the five potentially fair reasons for dismissal and arises where it becomes illegal for an employee to continue to be employed. The most typical examples are where an employee loses their right to work in the UK or where a driver loses their driving licence.

Some other substantial reason is a catch all that sweeps up other areas where there may be a serious issue justifying dismissal, but which does not neatly fit in with any of the other five potentially fair reasons for dismissal. Examples include irretrievable breakdown in working relationships and retirement.

Regardless of the reason for the dismissal it is vital that you follow a full and fair dismissal process with the employee.  Although all of the processes vary the key areas which are consistent throughout are that you need to address the prospect of dismissal with the employee, meet with them and then consider what they have to say.

Other than for a dismissal for gross misconduct notice will always need to be honoured albeit it can be paid in lieu of your employment contract allows that. Other than for a redundancy you would also typically always allow for an appeal.

Gary Smith has provided some brief videos which set out in more detail the legal elements of Incapability, Misconduct, Redundancy, Statutory Illegality and Some other substantial reason.

How can we help you?

Our team of expert Employment Lawyers assist employers daily with cases of dismissal or potential dismissal under all of the five potentially fair reasons. Claims for unfair dismissal can lead to awards of in excess of £100,000 comprised of a basic award and a compensatory award.  It is vital therefore that employers get quality advice to help them deal with matters in a legally compliant way whilst also reflecting the practical considerations of their business.

Regardless of the reason for the dismissal it is vital that you follow a full and fair dismissal process with the employee.  Although all of the processes vary the key areas which are consistent throughout are that you need to address the prospect of dismissal with the employee, meet with them and then consider what they have to say. Other than for a dismissal for gross misconduct notice will always need to be honoured albeit it can be paid in lieu of your employment contract allows that. Other than for a redundancy you would also typically always allow for an appeal.