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Unfair dismissals

If an employee has been dismissed and is taking you to an Employment Tribunal, it is important that you seek expert legal advice at the earliest opportunity.

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Unfair dismissals

What to do

Follow your company’s disciplinary procedures, have proof that the dismissal is for a fair reason, and seek professional employment law advice based on the specific facts of your case.

Seek expert legal advice at the earliest opportunity to minimise your losses and put your case forward clearly and effectively.

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Tick We have many years’ experience in representing employers in these circumstances.

Tick We can immediately help you to evaluate your chances of success and decide the most efficient way forward.

Unfair dismissals: understanding the law

When an employee is not carrying out their duties as you would want them to, or if other issues have arisen that make it appear necessary for you to end their employment, it is important that you are familiar with the law surrounding ‘unfair dismissal’ in England and Wales.

What is an unfair dismissal?

To terminate an employee’s job, you must show that it is just, reasonable and fair for you to do so. This means that you need to demonstrate that you have a good reason for firing them and that you followed your company’s procedures for warning or disciplining them prior to dismissal where necessary.

If you dismiss an employee and they feel it is unfair, they can take you to an Employment Tribunal. If the Tribunal deems the dismissal to be ‘unfair’ then you will have to abide by whatever order is made, which could include paying compensation or even re-hiring the employee.

Compensation could cost you in excess of £95,000 depending on the length of your employee’s service and their losses.

When is a dismissal ‘unfair’?

Some reasons for dismissing an employee are automatically deemed unfair, for example:

– They belong to or have joined a union
– Are pregnant
– Are seeking to enforce their statutory rights (e.g. they have asked for minimum wage, or for maternity/paternity/adoption leave)
– Are taking part in industrial action for less than 12 weeks

In those cases (and several others), a Tribunal will make an order in favour of the employee.

Wherever possible, it is advisable that you contact us concerning the legality of a dismissal prior to you taking action

When is a dismissal ‘fair’?

A dismissal will still be considered unfair unless you can demonstrate that the main reason for dismissing your employee was one of the following ‘potentially fair’ reasons:

1. Your employee is unable to carry out their duties. This could be because they lack the qualifications, or are simply incompetent. This could also include situations where an employee has a long-term illness, but you should seek our advice on this first because employees with some long-term illnesses could be protected under the Equality Act 2010 if they are deemed to have a disability.

2. Your employee has committed misconduct (e.g. they have been abusive, were intoxicated, or have stolen from you) – this must be serious and/or occurred on several occasions to constitute a potentially fair reason for dismissal. Gross misconduct (very serious misconduct) could justify instant (‘summary’) dismissal; other misconduct may require that you follow your company’s warning/disciplinary procedures for any subsequent dismissal to be deemed fair.

3. It would be illegal for you to allow your employee to continue working (e.g. they are in breach of immigration rules or have a criminal record).

4. Your employee is made redundant (because your business closes, the employee’s workplace closes or you require fewer employees to do the work).

5. ‘Some other substantial reason’ – this is a general category where it would be up to you as the employer to show that the dismissal is reasonable. This could include an employee being past the accepted retirement age.

As an employer, you would be expected by a Tribunal to show that your reason for dismissing your employee was ‘reasonable’.

Who can claim for unfair dismissal?

Generally, an employee who has worked for you for at least two years could claim unfair dismissal. There are some types of dismissal (e.g. involving discrimination or one of the ‘automatically unfair’ reasons) where there is no minimum period that your employee needs to have worked for you before they can claim unfair dismissal. If you are unsure whether someone is working for you as an employee or as a self-employed contractor, it is important to seek our advice as this distinction is complex.

An employee cannot claim for unfair dismissal if they are working in the UK illegally, and in all cases, they must apply within 3 months of being dismissed. 

Other things to note

If you behave in a way that forces your employee to resign, they could claim ‘constructive unfair dismissal’, which is a form of unfair dismissal. However, in this situation, the burden of proof is on the employee to show that their employer committed a fundamental breach of contract in response to which they resigned promptly.

If you make an employee redundant but then replace them with someone else who will do the same duties in the same location, this could also be considered unfair dismissal.

For advice or representation, please contact our team of employment law experts today. 

DISCLAIMER: This document is intended to be a guide to the current law only. It does not constitute legal advice and you are not entitled to rely upon it. You should always take proper legal advice relating to your own situation before acting.