Unfair dismissal claims are increasing again now that Employment Tribunal fees have been removed. You may be considering dismissing an employee but want to make sure you minimise your risk of an unfair dismissal claim? Or, it may be that you have already dismissed an employee and they are threatening a claim of unfair dismissal in the Employment Tribunal? Or perhaps you already have a claim on your desk?
How can Paladin help?
In any of these circumstances we are able to help. We understand that it is essential that your business has the right employees to do the job. Having the wrong people can impact on productivity, morale and, ultimately, profit. However, having to defend and unfair dismissal claim, or any other Employment Tribunal claim, also impacts on profit, not only in terms of legal fees but also potential awards against you. If successful an employee can recover their notice pay, a Basic Award of up to £15,240 and a Compensatory Award of up to a year’s gross pay (or £83,682). In some cases, damages can even be unlimited. It also takes up significant management time to defend claims, time that is better spent focussing on your business. We want to help you avoid such claims.
What is Unfair Dismissal?
By way of a brief recap, in many instances an employee needs two years or more service before they can bring an unfair dismissal claim. However, there are a lot of exceptions to this two-year rule, which include protected characteristics (sex, pregnancy, race, disability, sexual orientation, religion or belief, age etc.); family leave (maternity, paternity, adoption or parental leave); health and safety; Working Time Regulations issues; Sunday working; employee trustees/representatives; whistleblowing; and the assertion of various other statutory rights.
Checklist
If you are considering dismissing an employee, or if you already have, the first question you must ask yourself is whether or not you have or had a potentially ‘fair’ reason for dismissal. Those reasons are:
a reason relating to their conduct (breaking workplace rules, not complying with their contract, off duty misconduct etc.);
capability (health, performance, qualifications etc.);
redundancy (a cessation or reduction in the needs for employees to do work of a particular kind);
the legality of being employed (such as the right to work in the UK);
some other really good business reason (known as some other substantial reason or ‘SOSR’)?
If you have one of these reasons then that is half the battle. The second half is making sure you follow or have followed a ‘fair’ procedure. Without that even a dismissal that is for a really good reason could well be technically unfair and end up costing you in an unfair dismissal claim. You need to check you have considered the following:
Have you carried out a proper disciplinary or consultative process?
Have you told the employee in advance, and in reasonable detail, what it is they are supposed to have done wrong (if it is a disciplinary or performance issue)?
Do you need to conduct an investigation and give the employee necessary evidence for them to respond to?
In redundancy situations, is there a pool of people from which you need to select and do you have appropriate selection criteria?
Where there is an ill health situation, do you need medical reports and do you need to consider if the employee is disabled and therefore whether they need any reasonable adjustments?
Have you invited the employee to at least one meeting to make representations?
If the employee is dismissed or some or sanction imposed, have you given them the right of appeal?
Have you made sure that the employee has been made aware of their right to be accompanied where appropriate?
The procedure and what is reasonable varies depending on the reason for dismissal. This is why good advice at an early stage is so important. If you are engaging in a disciplinary procedure then usually the ACAS Code of Practice will apply, which you can find here. We also have a number of blogs on our website that will give you information on Unfair Dismissal and the tricky area of sickness absence, but ultimately if you are unsure about whether you have a fair reason for dismissal or what the procedure should be then your best bet is to pick up the phone and talk to us.
If you already have a claim in front of you and you are concerned you may have a problem then don’t worry. Providing you with the best possible defence and finding angles that other lawyers may not even consider is what we do best, so please do call us.
We offer an initial free, no obligation, conversation with you to provide some initial free advice. Call us and we can go from there.