Unfair Dismissal for Employers

At the start of the employment relationship, thoughts rarely wander to a situation where things have turned sour and employees have either been dismissed or have left in difficult circumstances.  More often than not, disgruntled employees who have left your business may not fully appreciate the reasons behind any such termination, and bring claims in the employment tribunal as a result.

In order for an employee to bring a claim for unfair dismissal, they need the requisite two years’ service unless they can argue one of the exemptions applies e.g. if they are making a protected disclosure (whistleblowing), or they have been dismissed as a result of pregnancy whereby they have the right to bring the claim for unfair dismissal without the requisite two years’ service. In our experience we are seeing more employees bringing claims based on whistleblowing simply to get round the lack of service issue. 

Whilst some claims are spurious, unfortunately the employer still incurs the time and cost of having to defend them, even in the early stages.  Our experienced team can help guide your business through any such claim in order to reach an effective solution. 

Reasons for dismissal

In order for a dismissal to be fair, it needs to be both procedurally and substantively fair. There also needs to be one of the following genuine reasons for the dismissal:

• Conduct covers misconduct and also gross misconduct.
• Capability includes ill health and performance.
• Redundancy.
• Statutory legality e.g. a driver loses his driving licence and is therefore legally unable to carry out the role.
• SOSR which is the “catch all” category which covers issues such as personality clashes, breakdowns in trust and confidence etc.

The burden of proof in respect of an unfair dismissal claim rests with the employer to show that they had a fair reason to dismiss, and as such they need to show that they have followed a fair process in terms of inviting the individual to a disciplinary meeting (previously carrying out any investigation if required), giving them the right to be accompanied, holding a meeting, providing a response and then offering the right of appeal.

In light of the above, the employer will need to determine whether any dismissal is within the band of reasonable responses or whether it is more reasonable to provide a lesser sanction. At this point factors such as length of service and other mitigating factors will all come into play. 

Compensation for unfair dismissal

Basic award – this is based on age, length of service and gross weekly pay.

Compensatory award – this is effectively loss of earnings and other benefits including pension, bonus etc from the date of dismissal to the date of any hearing.  However, employees have an obligation to mitigate their loss by effectively looking to secure alternative work. 

How can we help?

Should your business receive a claim for unfair dismissal, this can often result in wasted management time and cost but we can help focus your efforts in defending the claim and reaching an effective solution. 

Our track record in successfully defending claims brought against our clients means that we can advise you at an early stage of the process of the likely outcome and help you achieve a satisfactory resolution. We can assist in all aspects in preparing any case for a hearing, from cradle to grave, including organising the evidence, preparing the witness statements and ensuring the witnesses know what to expect from their day at the hearing.  We also have the ability to handle the advocacy in-house or alternatively to recommend one of a number of trusted specialist employment barristers, whichever you prefer.

We also look to analyse the claim initially, providing you with a merits assessment as soon as is practicable which enables decisions to be taken at early stage as to whether the business wants to resolve the matter by way of settlement, or fight at the final hearing.  Finally, we provide debriefs in order to ensure learning points are taken away from the process to help ensure any issues are not repeated in the future.