How to avoid unfair dismissal claims
Unfair dismissal arises when you terminate an employee’s contract without having a fair reason to do so and/or when a fair procedure was not followed in dismissing the employee.
Dismissing an employee is never an easy decision, no matter the circumstances. Sometimes, an employee may feel as though their dismissal is unjust or unreasonable and may seek compensation as a result.
Unfair dismissals can be costly to a business, in terms of money, time, and your reputation. Here’s how to dismiss an employee fairly whilst avoiding an unfair dismissal claim.
Have a well-drafted employment contract in place, along with a full-set of comprehensive workplace policies. The contract and policies should provide clear guidance of expectations for employee performance and conduct, as well as the procedures that will be followed if terms are breached.
Keep a copy of the signed contract and ensure that all company policies and procedures are communicated to staff. Your employees should have access to these policies and procedures whenever they need it.
In most claims for unfair dismissal, we find that businesses whose HR teams or managers have limited experience or training often struggle the most. Make sure that your HR team, managers and any other staff involved in the dismissal process receive regular training. Equality and discrimination, anti-harassment and bullying, grievance, capability and disciplinary procedures, and dismissals are all important topics to stay up-to-date with.
If in doubt over the fairness of a dismissal, consult with a skilled HR support service. Early advice and intervention can help to ensure that you won’t have to prepare for an employment tribunal when dismissing an employee.
Some reasons for dismissal are automatically deemed unfair if they are the main motive for dismissing an employee. Most automatically unfair dismissal claims relate to protected characteristics, but there are other instances where a dismissal may be deemed automatically unfair.
The only fair reasons for dismissal are:
Issues with conduct
Capability
Redundancy
Breach of statutory restriction
Some other substantial reason
When it comes to dismissing the employee, ensure you follow the procedure outlined in your policy documents and the ACAS Code of Conduct.
You must demonstrate that you have acted reasonably by:
Conducting an objective investigation without prejudgement or delay
Informing the employee of allegations against them in writing
Inviting them to a disciplinary or capability hearing
Providing sufficient evidence for the employee to prepare their case
Notifying the employee of their right to bring a colleague or trade union representative to the hearing
Presenting the evidence and giving the employee a chance to answer
Considering reasonable alternatives to dismissal
Notifying the employee of the dismissal in writing and informing them of their right to appeal
One consideration when looking at the fairness of a dismissal is to consider your past actions and act consistently with each employee.
You are not bound by previous decisions but you should take into account decisions made in similar circumstances, as well as any mitigating circumstances.
If you need help with dismissal, be sure to contact our experienced employment law solicitors. We offer a variety of services, including a 24/7 HR advice line and regular Adapt Training events, designed to help you prevent employment claims.
Contact Emily to discuss this further.
