Unfair Dismissals
An unfair dismissal occurs when an employee is dismissed for a reason that is not deemed fair according to Part X , Section 98 of the Employment Rights Act 1996. This legislation states that in cases of dismissal, it is for the employer to show that the reason for the dismissal (or if more than one reason, the principal reason) is either a reason falling within the legislation, or some other substantial reason of a kind that justifies dismissal.
The potentially fair reasons for dismissal are:
- Capability or qualifications - if the employee is not capable of performing the job for which they are employed. This could be due to general abilities or skills of the employee, or due to regular or long-term sickness which is preventing the employee from fulfilling their duties.
- Conduct - where the employee breaches the standards of conduct reasonably expected of them, they can be dismissed. However, except in cases of gross misconduct, dismissal will often not be justified for a first offence.
- Retirement - despite the discrimination laws preventing employers taking action based on the age of employees, retirement can be a fair reason for dismissal. Employers should review Section 98ZA to 98ZH of the Employment Rights Act 1996 in potential cases of dismissal for retirement.
- Redundancy - while redundancy can be a fairly quick method of reducing staff costs, employers do need to ensure there has been an appropriate consultation & selection process, demonstrating as necessary that the published criteria for redundancy did form the basis of the selections.
- Illegal to continue employment - if the employee cannot continue in their position without contravening a duty or restriction imposed by the law, this would be a fair reason for dismissal. As an example, if the employee had an order preventing them from being in close proximity to another employee, or the place of work, dismissal could be fair.
Providing the reason is one of the above, determination of whether the dismissal was fair or unfair shall be made in accordance with equity and the substantial merits of the cases - or "was the decision and actions of the employer fair & reasonable in the circumstances; would most employers take the decision to dismiss?"
Therefore, even if an employer is dismissing for a legally fair reason & they feel their actions are appropriate & justified, they should ensure this is likely to be the opinion of an Employment Tribunal before dismissing an employee.
For more information on unfair dismissals, or to ensure your business handles its dismissals fairly, contact Employment Law Clinic:
HR Support Line HR support line Pay a small monthly fee to receive instant E-mail/phone advice and guidance about HR and employment law. You will have your own personal advisor available at any time to answer any questions you may have and give you personalised advice when you need it.
A very affordable way to receive direct guidance from an experienced HR expert.
HR/Legal review and document draftingWe can analyse your business and draft HR policies, procedures, guides, staff handbooks and more. These documents will be drafted from scratch by a HR expert, so you have a solid set of rules which you can trust to keep your business on the right side of employment legalities at all times.
We can also review your existing documents to make sure they're 'watertight' and up-to-date with current legislation.
Employment Tribunals If your business is involved in an employment tribunal, then it's vital that your receive assistance from a professional HR expert. The employment law clinic has in-depth knowledge of employment law and can complete an ET3 to give you the best possible defence. We can also use our experience with hundreds of employee cases to represent you at a tribunal hearing. We know how employees can form their cases, so we can use that knowledge for your benefit.
Disciplinary & Grievance ProceduresIt's a legal requirement to have the right disciplinary and grievance procedures in place. We can assist in establishing this procedure and also support you through the process of disciplinary action against an employee. You can have a specialist employment law advisor available to guide you through each stage - confirming your actions are appropriate, balanced and legal.
-
Flexible WorkingEmployment laws provide employees with the right to request flexible working. Duties and legal requirements have been placed on employers for this purpose. We can oversee your flexible work system and make sure you abide to all flexible working laws.
Employment contract drafting One of the most essential documents for any employer. The employment contract gives both yourself and the employee a strict set of rules and requirements which must be abided to. When we oversee your employment contracts, we need to make sure that every detail is included, and that you're given maximum protection as an employee against unforeseeable events.
Managing attendance and performanceThere are often reasons behind poor performance and low attendance. Our HR specialists can analyse your business to find the root cause of such problems, and then provide solutions to resolve the situation and increase performance/attendance figures. As with any employee related matter, we always make sure attendance and performance improvement procedures comply with employee contracts and employment law.
Get in touch With over 20 years of HR and employment law experience, we can help you with literally anything when it comes to your workforce. If you're interested in any of the above services, or would like to ask us any questions, just call 020 3239 0569, or click here to contact us online.