Unfair dismissal can come about when an employes has dismissed their employee without a good reason, or without following the correct procedures for dismissal. Employers looking to dismiss an employee should proceed with care. It is important the employer has a fair reason for the dismissal and follows a fair procedure otherwise the employee could have a claim for compensation for unfair dismissal. This could have serious consequences for the employer in terms of financial penalties and the management time taken up dealing with the claim.
We have set out below a few points that should be considered before dismissing an employee.
There are only five potentially fair reasons for dismissal:-
(a) Capability or qualifications e.g. sickness or incompetence
(d) Illegality e.g. lorry driver banned from driving
(e) Some other substantial reason e.g. business reasons
An employer will have to show that the dismissal falls within one of the above potentially fair reasons. Even if there is a fair reason for dismissal, the decision to dismiss for that reason must still be fair given all the circumstances of the case. Also the employer’s decision to dismiss must be within the range of reasonable responses from a reasonable employer.
In addition to showing a fair reason for dismissal, the dismissal could still be unfair if the employer has not followed a fair procedure (e.g. the ACAS code of practice).
Is the employee eligible to bring a claim for unfair dismissal?
Employees employed before 6 April 2012 must have been continuously employed for one year to make a claim. Employees employed on or after 6 April 2012 must have been continuously employed for two years to make a claim. There are however certain types of cases where a dismissal will be automatically unfair and no qualifying period is required, for example, where the dismissal is on the grounds of pregnancy, discrimination or whistleblowing.
An employee who has been unfairly dismissed can claim reinstatement (old job back), re-engagement (different job with same employer) or compensation for unfair dismissal.
Our experienced employment solicitors advise both employers and employees. If you are an employer we can advise you on the options open to you when dismissing an employee and how to minimise the risk of a claim being made against you, or if you are employee we can advise you on your employment law rights and whether you have a claim against your employer and the likely value of that claim. We provide specialised and pragmatic advice on all aspects of employment law.
If you would like any further information about Employment Law then please telephone the following contact numbers to arrange an appointment:
Eastbourne 01323 727321
Hailsham 01323 841481
Polegate 01323 487051
Meads 01323 407577
We will maintain complete confidentiality and discretion at all times.