Find, Mind & Grind

Unfair Dismissal - The Employer's Nightmare

The thought of being taken to the cleaners (or more particularly the Employment Tribunal) by a hostile, troublemaking employee is probably one of the worst fears of any employer – not to mention one of the most costly.  On the one hand every person you employ is potentially one more hassle.  On the other hand, unless you are to remain a one man/woman band, (doing everything from brewing the tea to doing the job) a loyal and capable workforce is essential to help you develop your business.

There is of course no cast iron guarantee of a smooth ride – after all you are dealing with human beings, each with their  own foibles and eccentricities.  But some basic knowledge of how the system works puts you in a far better chance of avoiding pitfalls.

Unfair Dismissal arises in two main circumstances.

·         When you, as the employer, are not able to show a fair reason for dismissal; &

·         You go about things in a totally daft and unreasonable way – no warnings, no consultation, no investigation, unfair selection, no offer of alternative employment and so on.

So going about things in the wrong manner can land you in just as much hot water as not having a good reason.  Or put another way, having a valid reason for dismissal is no help if you muck up the procedure.

FAIR REASONS FOR DISMISSAL

Basically there are five circumstances where a dismissal can be deemed to be fair (always supposing you go about things in the correct manner).

·         Where the dismissal relates to the lack of capability, skills or disqualification from doing the job in question.

·         Where the employee is, “guilty” of misconduct.

·         Where there is a true redundancy situation (“redundancy” is legally defined and will be dealt with in a later issue).

·         Where there are legal requirements for a job and the employee does not have that – thus, for example, a doctor who is “struck off” cannot complain if he is dismissed.

·         For other “substantial” reasons.

EMPLOYEES’ ABILITY TO MAKE A CLAIM

·         The employee must normally have been employed by you for twelve months – so if you have any doubts, get rid within the twelve month period.  However, do note that the twelve month test does not have to be satisfied if the dismissal involves pregnancy or is on the grounds of sex, race, disability, sexual orientation, religious beliefs, trade union membership or health and safety issues.

·         An employee is anyone under a contract of employment or apprenticeship – whether the contract is written, oral or implied.

·         On the effective date of termination, the employee must have been within an appropriate age limit – often 68 or 65 years.

·         Certain classes (eg armed forces) are excluded from this eligibility.

BRINGING A CLAIM

Your troublesome employee normally has just three months from the date of dismissal to bring a claim in the Employment Tribunal.  Once a claim has been entered then an ACAS conciliator will offer his services to mediate.  Thus, there is the opportunity to nip things in the bud without risking a full hearing.

MAXIMUM AWARD

Awards can be very high.  Unfair dismissal claims alone can be over £60,000, whilst other claims (e.g. discrimination) are unlimited.

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