The HR Place

Fair and Unfair Dismissal

Dismissal is the final straw in employee relations. In the majority of cases I’ve dealt with, there has been hope during the process of a happy ending: negotiation, mediation, compromise. But sometimes, employment has to be ended, and if and when you have to go down that route you need to know the fair reasons for dismissal.

Whilst employees in the UK can only claim unfair dismissal if they have at least 2 years’ service, it is prudent to follow the correct procedures for any employee, and particularly to note that a discrimination claim can be made regardless of length of service. Employees with less than 2 years’ service can also claim wrongful dismissal if dismissed without notice.

Conduct

General conduct issues, for example persistent poor timekeeping, refusal to follow reasonable instructions, or continued absence, need to be pursued through the company’s disciplinary procedure. The easiest way to slip up in this regard and find yourself in deep water is not to follow your procedure correctly. 

Gross misconduct (for example, theft, violence, drinking or drug-taking at work, harassment) is likely to lead to summary dismissal without notice. Employers need to believe the employee is guilty of misconduct, and to have had reasonable grounds for believing that, rather than it being ‘beyond reasonable doubt’ as in criminal law. They also need to have carried out a fair and reasonable investigation in the circumstances.

Capability

The employee cannot do their job properly, or is not performing as required. This could include someone who is genuinely ill but unable to attend for work, making it impossible for them to carry out their work. In sickness absence cases, which can be highly emotional for all involved, employers must consider seeking medical advice, for example Occupational Health or a report from the employee’s own GP. Again, employers need to act reasonably, and the provisions of the Equality Act 2010 need to be taken into account.

If performance is the problem, then an accurate record of the issues is crucial, along with adequate training provision and the employee being notified of the problem, being warned at least once and given the chance to improve.

Redundancy

In order to make a redundancy, the employer needs to have a genuine operational reason for making one or more redundancies, needs to follow a fair procedure, including the selection of employees for potential redundancy. The correct consultation process must be carried out, and Statutory Redundancy Pay must be paid, otherwise the redundancy could be treated as unfair dismissal. The selection pool for redundancy is often critiqued in employment tribunals. It’s worth noting that the ending of fixed term contracts is often treated as a redundancy –  a topic for another day!

Statutory Bar

An employee losing their right to work in the UK, or losing their driving licence if their job absolutely requires it. Be careful, though, because you should offer a suitable alternative wherever possible.

Some Other Substantial Reason

The ‘substantial’ bit is important! An employee being in prison for a long time, and therefore unable to work; a safeguarding concern; or an irreconcilable personality clash. It can also cover the ending of fixed term contracts which are explicitly to cover someone else’s maternity leave. Again (and I cannot say it enough times), following procedure is key.

You will notice repetition of reasonable in this article. Here are some of the tests that are used legally when considering whether a dismissal was fair or not:

Is there a potentially fair reason for dismissal? (one of the above)
Did the employer act fairly and reasonably in the circumstances, taking in account the size of the company and resources available, and the details of the case?
Did the decision to dismiss fall within the range of reasonable responses?

If you need support with employee relations, get in touch! 

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