Employers Unfair Dismissal
An unfair dismissal claim can arise where an employer does not have a good reason for dismissing and they fail to adhere to a fair and reasonable procedure.
What is a fair reason to dismiss?
You should confirm to your employee the reason why they are being dismissed. There are five potentially fair reasons for dismissal: conduct, capability, redundancy, statutory restriction and some other substantial reason. However, it does not necessarily follow that someone dismissed for one of these reasons will render that dismissal fair. Where you can establish that there was a fair reason to dismiss, it is still for the Employment Tribunal to decide whether the dismissal was fair or unfair and that you acted reasonably.
How important is it for me to follow a correct process?
It is very important that you adhere to a correct process. Even where there is a justifiable reason to dismiss, the dismissal could still be unfair if you did not follow a correct process. You should have clear policies and procedures in place which are up to date and clearly communicated.
What if my employee is unhappy with the dismissal?
Your written procedure should outline what is to happen once the decision has been communicated, for example, where dismissal is for a disciplinary reason, that an appeal must be submitted within a specific timeframe. If the appeal is unsuccessful and the dismissal remains effective, a claim for unfair dismissal could be issued at an employment tribunal (in addition to any other relevant claim). There are eligibility requirements relating to service depending on the nature of the claim.
Why have I received a call from ACAS?
It is a requirement that the dismissed appoints ACAS (the Advisory, Conciliation and Arbitration Service) before issuing a claim at the employment tribunal. This is to enable the parties to resolve the issue by means of conciliation before litigation. However, it does not necessarily mean that proceedings will be issued where conciliation is unsuccessful but in our experience, claims often proceed.
Can I prevent a claim from being issued?
You could consider whether it is appropriate to enter into a Settlement Agreement. This is a confidential document that will prevent an employee from pursuing their employment rights in return for a financial settlement. Some employers explore this avenue before commencing a procedure or formally making a decision to dismiss.