Employees have the right not to be unfairly dismissed by their employer. In order to make an unfair dismissal claim, an employee must have had at least two year’s continuous employment with the employer. The employee then needs to establish they have been dismissed. Once dismissal is established it will be down to the employer to prove the dismissal comes for one of five recognised reasons:
1 Redundancy
Redundancy can occur when you cease or intend to cease carrying on your business or work of a particular kind, at your employees place of work; or if the needs of the business for a certain kind of work have ended or decreased. In order to ensure a redundancy dismissal of an employee is fair, you must adopt an objective selection process. If you don’t, the employee might have a case for an unfair dismissal claim, and might also be able to claim an increase on any compensation award.
2 Illegality
It may be the case that an employee has committed or been accused of committing a criminal offence either in or outside of work. This could be a situation where dismissal of the worker is reasonable.
3 Capability
It may be fair to dismiss an employee who is deemed not to be capable for the job either through incompetence or sickness. This may be because they lack the right qualifications or if they are absent from work for long periods of time due to illness. If you are contemplating a dismissal based on capability you should be certain to confirm with the correct procedure before doing so to avoid a claim by the employee for unfair dismissal.
4 Conduct
Continued rule flouting, theft or fraud are frequent reasons for conduct based dismissals. As an employer, it is key that the dismissal is handled through succeeding in an unfair dismissal claim and possibly being awarded increased compensation.
5 Some other key reason
There may be another potentially fair reason for dismissal. The onus is on an employer to establish that a particular reason, not falling within the four reasons above, constitutes ‘some other substantial reason’ which justifies dismissing an employee holding the position held.
Even if the employer is able to prove successfully that the dismissal was for one of the fair reasons above, an employment tribunal must still believe that the dismissal was carried out according to procedure.
Employers should be mindful of correct procedures for dismissals - statistics show a large percentage of unfair dismissal claims are lost by employers for not observing correct procedures.
Costs may be awarded against either party in an employment tribunal but it is quite rare - it is better to assume each party will cover their own costs in an unfair dismissal claim.
Employment law is complex. It is important that procedure is followed carefully, so both employees and their employers should make sure that they consult experienced employment solicitors in a dismissal situation.