Everything you wanted to know about…Unfair Dismissal…but were too afraid to ask.
This week we start our new series, examining key employment law concepts. Join us as we provide you with a weekly examination of the nuts and bolts of various topics, focussing on the areas of advice about which our client’s frequently contact us.
Feel free to get in touch with any of the MLP team, if you have any queries on the information provided or if there is a burning issue that you would like us to address.
What is unfair dismissal?
Unfair dismissal occurs when an employer dismisses one of its employees (as it does not apply to workers) for an unfair reason and/or they do not follow the correct procedure for the dismissal.
How can an employer avoid dismissing an employee unfairly?
- Dismiss the employee for a fair reason
- Ensure the decision to dismiss the employee is reasonable
- Follow a fair procedure
What are the fair reasons for dismissing an employee?
- Capability or qualifications for the job
- Some other substantial reason of a kind which justifies a dismissal (eg to force through a contract change)
How does an employer know if their decision to dismiss the employee is reasonable?
The test here is whether the decision to dismiss the employee is within the range of reasonable responses open to an employer in similar circumstances. This means that there may be various options open to an employer in a particular situation that would all be considered fair. The decision that the employer takes will therefore be considered to be reasonable, provided it is not viewed as one that no reasonable employer would have taken, if they had been in the employer’s shoes.
What basic procedure should an employer follow to ensure fairness?
- Advise the employee that they are commencing a procedure that may culminate in their dismissal
- Invite the employee, in writing, to attend a meeting
- Allow the employee to be accompanied by a Trade Union Representative or colleague at the meeting
- Consider all the relevant information and make a reasonable decision
- Inform the employee of their decision, in writing
- Allow the employee the right of appeal against the dismissal
What is the length of service necessary before an employee can make an unfair dismissal claim?
The employee must have been employed by the employer for 2 years (if less than 2 years, don’t forget to include the employee’s period of notice in assessing the length of service). If not, a claim for unfair dismissal cannot be made unless one of the statutory exceptions applies (eg the employee was dismissed after her first month, when the employer discovered that she was pregnant).
What is the time limit for lodging an unfair dismissal claim
An employee must submit a claim to an Employment Tribunal within three months/less one day from the effective date of termination of the employment – the date of leaving the job, if it is with immediate effect or upon the expiry of a period of notice.
An Employment Tribunal can make various Orders, in the event that you are found to have unfairly dismissed an employee. These include making you give the employee their old job back and financial compensation. Financial compensation comprises 2 elements – a basic award, which is akin to a redundancy payment and a compensatory award, which is limited to 1 year’s salary and currently capped at £88,519.
Next week….annual leave
Please don’t hesitate to contact the team at MLP with ideas about topics or for detailed advice in connection with any of the issues raised.