What is Unfair Dismissal?

In a recent case a teacher at Weatherby Prep School, of whom Prince William and Prince Harry’s are former students, won £170,000 for unfair dismissal and discrimination after the school dismissed him without following proper procedures. The Employment Tribunal found that the school failed to follow fair dismissal protocols, moving straight to dismissal without considering other options such as warnings or further investigation. This case underscores the significance of understanding and applying the principles of unfair dismissal in the workplace to avoid potential Employment Tribunal claims.

What is Unfair Dismissal?

Unfair dismissal occurs when an employee is dismissed from their job in a manner that violates their legal rights. In the UK, employees are protected by the Employment Rights Act 1996, which sets out specific rules regarding the termination of employment. To bring an ‘ordinary’ unfair dismissal claim, employees must have been employed for at least two years (the new Labour Government is looking to bring in changes to give all employees the right to bring an unfair dismissal claim from day one of their employment).

There are several reasons a dismissal may be considered unfair. These include:

• The employer did not have a fair reason for the dismissal.
• The employer failed to follow a fair procedure, such as conducting a fair investigation or giving the employee an opportunity to explain their side.

What is Automatically Unfair Dismissal?

In certain situations, dismissal is deemed automatically unfair, regardless of the circumstances. These situations involve dismissals related to an employee’s legal rights, such as:

• Dismissal for participating in lawful industrial action.
• Dismissal for asserting a statutory employment right, such as requesting maternity leave or whistleblowing.
• Dismissal for reasons linked to discrimination, such as gender, race, or disability.
• Dismissal for reasons related to health and safety, such as refusing to work in dangerous conditions.

In some cases of automatically unfair dismissal, employees are not required to have two years of continuous service to bring a claim. This provides additional protection for employees in vulnerable positions.

How do I dismiss an employee fairly?

If an employer decides that dismissal is necessary, it is crucial to follow a fair and transparent process. Dismissal should be considered a last resort, and employers must ensure that they have valid reasons and have given the employee adequate warning.

Here are the steps to dismiss someone fairly:

1. Establish a Fair Reason for Dismissal
   Employers must have one of five fair reasons for dismissal under the law. These include:
   • Conduct: If the employee has acted inappropriately, such as engaging in theft or gross misconduct.
   • Capability: If the employee is not performing their role to the required standard, or is unable to perform their role due to qualifications or ill-health.
   • Redundancy: If the employee’s role is no longer needed..
   • Legal reasons: If it is illegal for the employee to continue working in their role, such as losing a driving licence for a driver.
   • Other substantial reasons: A catch-all category for other justifiable reasons that do not fit neatly into the above categories.
2. Follow a Fair Process
   A fair process is key to avoiding an unfair dismissal claim. The employer must:
   • Carry out a thorough investigation into the allegations or concerns.
   • Hold a formal meeting with the employee, giving reasonable notice, providing the evidence relied upon and allowing them to be accompanied and providing them with the opportunity to explain their actions.
   • Provide written reasons for the dismissal.
   • Give the employee the right to appeal the decision.
3. Give Warnings Where Appropriate
   For issues related to conduct or performance, dismissal should typically not be the first step other than in cases of gross misconduct. Instead, employers should give the employee a formal warning, allowing them the opportunity to improve their behaviour or performance. Only if the problem persists should dismissal be considered.
4. Ensure Consistency in Dismissal Decisions
   Employers must ensure that similar cases are treated consistently. If two employees have committed the same misconduct but are treated differently, this could lead to an unfair dismissal claim. Consistency and fairness are key to defending any dismissal.
5. Provide the Employee with the Right to Appeal
   After making a decision to dismiss an employee, employers should offer the employee the opportunity to appeal the decision. An appeal provides an additional safeguard, ensuring that the decision was fair and reasonable.

How can employers protect themselves against unfair dismissal claims?

Employers can take several steps to protect themselves from unfair dismissal claims. These include:

1. Have Clear Disciplinary and Grievance Policies
   One of the most important steps an employer can take is to have clear and well-documented disciplinary and grievance policies. These policies should outline the procedures for dealing with misconduct, poor performance, and other issues that may lead to dismissal. By following these procedures, employers reduce the risk of unfair dismissal claims.
2. Train Managers on Fair Dismissal Procedures
   Ensuring that all managers are trained on how to handle dismissals fairly is critical. Many unfair dismissal claims arise from poorly handled disciplinary processes. Training managers on conducting investigations, managing disciplinary hearings, and following due process can significantly reduce the risk of claims.
3. Keep Detailed Records
   Employers should keep detailed records of any issues leading up to dismissal, such as performance reviews, disciplinary meetings, and warnings given. These records will be vital evidence if an unfair dismissal claim is made. Having thorough documentation shows that the employer acted reasonably and fairly throughout the process.
4. Seek Legal Advice
   For complex or high-risk dismissals, it is advisable to seek legal advice before proceeding. Employment law can be complex, and a poorly handled dismissal could lead to costly claims. Consulting with a solicitor can help ensure that the dismissal is handled correctly, reducing the risk of legal challenges.
5. Review and Update Employment Contracts
   Employment contracts should clearly state the conditions under which dismissal may occur. Regularly reviewing and updating these contracts can help employers stay compliant with legal requirements and provide clear guidance to employees on what is expected of them.

Concluding comments

Unfair dismissal is a serious issue in employment law, and failing to follow the correct procedures can lead to costly tribunal claims. Employers must ensure that they have a valid reason for dismissal, follow a fair process, and provide employees with the opportunity to appeal. By implementing clear policies, training managers, and keeping thorough records, employers can protect themselves from unfair dismissal claims and ensure that dismissals are handled fairly and legally.

If you require legal advice concerning unfair dismissals, please call our office today on 02476 231000 or email enquiries@askewslegal.coPlease note that this article is for information purposes only and does not constitute legal advice.