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Unfair Dismissal

Unfair Dismissal Claims Advice for Employers

Being an employer carries with it significant responsibility. Not only are you charged with training and developing personnel, but also in providing for their safety and working with them to develop a productive working relationship. The difficulty is that, from time-to-time, issues may arise causing you to consider whether or not it is appropriate for the employment relationship to continue, which may ultimately result in employee dismissal. When taking such a decision, it’s vital to follow a fair procedure and reach an outcome that’s proportionate. A failure to do so can open up an employer to the risk of an unfair dismissal claim being made against them.

Unfortunately, unfair dismissal claims are an occupational hazard for employers. If you are concerned about, or facing, a claim by a former employee for unfair dismissal, then it is vital that you work with an experienced legal team who specialise in advising and representing employers.

NA Legal is a commercial law firm that advises employers and represents their interests in claims for unfair dismissal. If you are looking for practical guidance on how to deal with, or mitigate the chances of, an unfair dismissal claim being made against you, we are here to help. 

How does the law define ‘unfair dismissal’?

It is not uncommon for employees to feel that there is an element of unfairness in their being dismissed from a role – most people would seek to avoid being made redundant where possible. However, an employees’ being dismissed does not automatically mean that it is unfair. In law, unfair dismissal has a particular meaning which is set down in the Employment Rights Act 1996. A dismissal will only be vulnerable to being deemed unfair if you, as an employer:

  1. Do not have a good reason for dismissing an employee; or

  2. Do not follow company procedures in dismissing that employee.

The law sets down what is considered to be likely to be a good reason in terms of dismissing an employee:

  • a reason related to an employee's conduct;
  • a reason related to an employee's capability or qualifications for the job;
  • because of a redundancy;
  • because a statutory duty or restriction prohibited the employment being continued; or,
  • some other substantial reason of a kind which justifies the dismissal.

It is also important to note that in order for a dismissal to be deemed as being fair, you must have acted reasonably in the circumstances. This tends to depend on the facts surrounding the case, but should involve not dismissing an employee immediately unless the situation is particularly grave and no alternative option would have been appropriate. Most employee activities, including joining a trade union or whistleblowing bad practices in the work place, are legally protected and therefore cannot be the basis for dismissing an employee. This should be borne in mind when applying disciplinary procedures and dealing with employees.

How does the law apply in unfair dismissal cases?

In a claim for unfair dismissal, the burden of proof lies on the complainant to demonstrate that they have been unfairly dismissed. This can be particularly challenging, especially given that the law reflects the reality that there are instances where an employee can be legally dismissed on the basis of a ‘potentially fair reason’.

The law treats certain reasons for a dismissal as being potentially fair, as was mentioned above. These grounds for dismissal are quite wide-ranging:

Capability

If an employee lacks the necessary skill set to perform their duties, or if they are for some reason (e.g. long-term sustained illness) absent from employment, then this may be a basis on which to legitimately dismiss them from employment. This is equally true in situations if an employee no longer has the necessary qualifications to perform their duties, e.g. they no longer have a driving licence and their job is based on being able to drive from one place to another.

Conduct

Where an employee behaves in a way that is not appropriate with their job or position in your business, then you may have an avenue to dismiss them. This will depend on the niceties of a role, but any behaviour that is rude, violent, criminally-related or that is contrary to express instructions may justify dismissal.

Redundancy

The law has been designed to take account of the fact that businesses can and do experience financial hardship, which may result in a reduction in the size of the workforce. If there is a genuine prospect of redundancy, and an employee is given fair warning and selected according to fair procedure, then it is possible that this can be a fair reason to dismiss them from work.

Statute

Employers are permitted to dismiss someone if they find themselves in a situation where continuing an employee to perform their role would involve a violation of statute, e.g. allowing someone to drive when they no longer have a driving licence.

Some other substantial reason

As an employer, you may find yourself in a situation where an employee refuses to engage with you in adapting to the changing business environment and is unreasonable in their expectations. If you do find yourself in such a situation, then this too may be a legal basis to consider dismissing an employee from their position in your firm.

Is there a time limit for unfair dismissal claims?

At NA Legal, we are very experienced in advising employers facing claims of unfair dismissal. As a result, we appreciate that one of the many things that you will be concerned about is how long a former employee is given to decide whether or not they wish to raise a claim against your organisation.

It is important to highlight that employees do not possess an automatic right not to be unfairly dismissed. The opportunity for an employee to enforce their right will only become available following two-years continuous employment with your business. This threshold for being able to raise an unfair dismissal claim tends to change from time-to-time, depending on who is in government, and advice should be sought when a claim is suspected to ascertain whether or not an employee is even capable of raising a claim in the first place. 

Another significant factor in terms of the timing of a claim for unfair dismissal being made against your business is the mechanics of the process. A former employee only has a limited window within which an employment tribunal will entertain their claim: a tribunal will only investigate their claim if it is raised within three months of the ‘effective date of termination’ of their relationship with your business. In other words, upon expiry of their contract with you (either through the end of a notice period or upon their contracts termination without notice), if they do not raise a claim within three months then they will lose their ability to pursue a claim against you for alleged unfair dismissal.

At NA Legal, we understand that facing a claim for unfair dismissal can be very worrying and troublesome for a business. We take pride in providing a tailored service to our employer clients: we undertake a comprehensive review of any claim being made against your business; provide an analysis of the merits of the case; and work with you to build a robust defence to the claim. Our firm will also represent your business in any tribunal proceedings. At NA Legal, we view our role as one of a legal advisor that is charged with protecting your business’ interests. If you are concerned about a claim for unfair dismissal being raised against your business, contact our team today on 0800 1777 522 and learn how we can help.


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