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Avoiding a claim for unfair dismissal

Avoiding a claim for unfair dismissal

It is stated in the Employment Rights Act 1996 that there are potentially five fair reasons for dismissing an employee – redundancy, conduct, legality, capability or some other substantial reason.

What constitutes ‘fair’?

The word fair in this particular circumstance has been defined by a mix of codes of practice, law and case law. The statutory disputes resolution procedure was introduced in 2004 making it unfair to dismiss an employee if the appropriate disciplinary procedure has not been carried out with a letter, meeting and a right to appeal.

Most cases of unfair dismissal are lost due to faults in procedure, with small businesses often losing twice as much as the bigger businesses when facing a tribunal. You must ensure that your business complies with the law and best practices to avoid being found guilty of unfair dismissal.

Complying with the law

You will be much more successful when defending your case if you have sufficient employee contracts of employment, the correct policies and procedures following the correct procedure in place and ensure that make your employees are aware of the statutory discipline and grievance procedures stated in the Employment Act 2002.

It’s more than likely that you will lose your case if this process has not been followed.

The reasons for dismissal

Fair reason for dismissing your employee:


When the behaviour of an employee is unacceptable, for example constant tardiness or consistently being inebriated at work.


An employee is lacking in the proper aptitude or skills to perform their job or are regularly off work due to ill health. You should always take into consideration training, support or moving the employee to improve their capabilities before considering dismissal.

Note: Please be aware it is against unlawful to fail to make ‘reasonable adjustments’ to your working practices and the workplace to ensure the employee is not at a considerable disadvantage.


This refers to an employee causing themselves to be unable to work due to committing an offence, a lorry driver losing his driving licence for example.


When there is sufficient business or it is closing down for example. Rules on this subject are more detailed and you should seek a professional for advice.

Please bear in mind that the reasons above will not be considered ‘fair’ unless the procedures have been followed and the alleged misconduct have been investigated and confirmed as true. If not followed then be expected to be found guilty of unfair dismissal.

If an employee if being regarded for dismissal and does not fall within the five reasons above you are almost guaranteed to be facing a costly tribunal.

Before dismissing any employee we would strongly advise getting legal advice for the particular case.