An Employment Solicitor's Guide To Unfair Dismissal

All employees have the right not to suffer unfair dismissal

, but if they have been unfairly dismissed, to make a claim against their employer they must have been employed by them for at least one year. The employee must then confirm that they have been dismissed. Once this has been established, the employer must prove that the dismissal is for one of the following five reasons:

1. Redundancy

Redundancy can occur when you cease or intend to cease carring on your business or work of a particular kind, at your employees place of work; or if the needs of the business for a certain kind of work have ended or decreased. In order to ensure a redundancy dismissal of an employee is fair, you must adopt a objective selection process. If you don't, the employee might have a case for an unfair dismissal claim, and might also be able to claim an increase on any compensation award.

2. Illegality

It may be the case that an employee has committed or been accused of committing a criminal offence either in or outside of work.This can be an occasion when it may be reasonable to dismiss that worker. For example, it might be a requirement of the job for a worker to have a driving license - if they lose this then dismissal could be viewed as reasonable.

3. Capability

It may be fair to dismiss an employee who is deemed not to be capable for the job either through incompetence or sickness. for example, this may be because they lack the right qualifications or if they are absent from work for long periods of time due to illness.If you are contemplating a dismissal based on capability you should be certain to confirm with the correct procedure before doing so to avoid a claim by the employee for unfair dismissal.

4. Conduct

Continued rule flouting, theft or fraud arefrequent reasonsforconduct based dismissals.It is important as an employer to establish dismissal reasonable in the circumstances by carrying out a full and objective procedure - failing to do so could have the consequence of the employee succeeding in an unfair dismissal claim andpossibly being awarded increased compensation.

5. Some other substantial reason

There may be another potentially fair reason for dismissal. The onus is on an employer to establish that a particular reason, not falling within the four reasons above, constitutes 'some other substantial reason' which justifies dismissing an employee holding the position held.

Although an employer may successfully establish one of the fair reasons set out above, an Employment Tribunal must still be satisfied that that employer completed a fair procedure.

Employers should be mindful ofcorrect procedures for dismissals - statistics showa large percentage of unfair dismissal claims are lost by employers fornot observingcorrect procedures.

Costs may be awarded against either party in an Employment Tribunal but there is quite rare - it is better to assumeboth parties will bear their own costs in any unfair dismissalclaim.

Employment law is complex. It is important that procedure is followed carefully, so both employees and their employers should make sure that they consult experienced employment solicitors in a dismissal situation.

by: Tim Bishop

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