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  • Writer's pictureAlfio Bonanno

Unfair Dismissal Explained: What Every Employer Needs to Know

unfair dismissal

Unfair dismissal is a term that refers to the termination of an employee's contract without a fair reason or without following the correct procedure - a fair process. It's a common reason for Employment Tribunals and can be claimed by employees who have been employed for at least two years. However, it's important to note that this two-year qualifying period does not apply if the dismissal is automatically unfair.

A common misconception among employers is that if an employee has not reached two years of service, they can be dismissed without any repercussions. This is not always the case, especially if the dismissal falls under the category of 'automatically unfair'. It's crucial to understand the nuances of employment law to avoid potential legal issues.

The Importance of a Fair Process

A fair process is not just a legal requirement; it's also a cornerstone of good HR practice. It ensures that both parties are treated with respect and dignity, and it can help to prevent costly and time-consuming legal disputes. The Acas Code of Practice on disciplinary and grievance procedures provides a valuable framework for employers. This includes conducting a thorough investigation, providing a written formal warning, arranging a meeting to discuss the issue, making a decision, and giving the employee a chance to appeal.

Some employers may feel that following a fair procedure is time-consuming and unnecessary, especially in clear-cut cases of misconduct. However, skipping these steps can lead to allegations of unfair dismissal and potential legal disputes. It's always better to invest time in following a fair procedure than to face the consequences of a rushed dismissal.

Automatically Unfair Dismissals

Some dismissals are considered 'automatically unfair' by law. These include dismissals related to maternity leave, trade union activities, whistleblowing, and more. The list is extensive and it generally includes situations where employees try to address and exercise statutory rights or discrimination cases under the Equality Act 2010, which apply before, during and even after employment. In these cases, the employee does not need to have been with the company for a minimum period to claim automatically unfair dismissal. This is a crucial distinction that all employers should be aware of.

It's easy to assume that certain reasons for dismissal, such as whistleblowing or trade union activities, are justified due to their potential impact on the business. However, these are protected activities under employment law, and dismissing an employee for these reasons can be automatically unfair. It's important to balance the needs of the business with the rights of the employees.

The 'Potentially Fair' Reasons for Dismissal

Fair grounds for dismissal include poor performance, inability to do the work, legal reasons why the employee cannot do the work, gross misconduct, and redundancy. However, even if the reason for dismissal falls into one of these categories, an employee may still dispute the fairness of it, hence why we term them 'Potentially Fair' . For instance, they may not agree that their performance has been poor, or there may be mitigating circumstances such as illness, stress, injury, workplace bullying or discrimination. Even if tribunals find that the reason for dismissal was fair, the dismissal will still be unfair if it is found that a process was not followed or if such process was flawed.

When considering dismissal due to poor performance or inability to do the work, it's worth reflecting on whether enough has been done to support the employee. Have they been given adequate training and opportunities to improve? Have any underlying issues, such as workplace stress or personal problems, been addressed? Dismissal should be a last resort, not a first response.

Consequences of an Unfair Dismissal

If an employee finds they have been unfairly dismissed, they will usually take the employer to an employment tribunal. If the tribunal finds the dismissal to be unfair, the employer will not be able to defend the claim and the employee will succeed with the claim. The employer will then have to reinstate or pay compensation to the employee.

At Ethos HR Consulting, we understand that employment law can be complex and often overwhelming. That's why we're here to help. Our team can provide you with the guidance and support you need to deal with dismissals confidently.

Whether you're dealing with a potential unfair dismissal case or you simply want to ensure that your HR practices are up to date and legally compliant, we're here to help. Contact us today to learn more about our services and how we can assist you.

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