What are fair and unfair reasons for dismissal?
Fair reasons for dismissal
Employers can only dismiss an employee protected by unfair dismissal legislation (those with at least two years’ service) for certain reasons which are considered to be “fair”. These reasons are:
● Lack of capability
● Genuine redundancy
● Statutory requirement
● Some other substantial reason
Dismissing protected employees for another reason can constitute unfair dismissal and may result in an employment tribunal.
Following a fair process
It’s vital that employers follow a certain process in order to dismiss an employee; failure to do so can also result in the dismissal being considered unfair. Unless an employee has committed gross misconduct, you cannot summarily dismiss a member of staff. You should give at least two formal written warnings and ensure that you stick to the ACAS Code of Practice on Disciplinary and Grievance Procedures to avoid being penalised if the case goes to court.
Even if you’re only disciplining an employee, rather than dismissing them, you should be aware of the rules on unfair dismissal in case you need to take into account any disciplinary action when it comes to a dismissal further down the line.
Also, make sure that you are abiding by the contract of employment and any associated HR policies and procedures during any dismissal process. Otherwise, this could amount to a breach of employment contract and the employee might be able to claim constructive dismissal.
Dealing with unfair dismissal claims
Ensure that you understand the rules on unfair dismissal before even broaching the subject of dismissal with an employee. Remember that you can only dismiss someone who is protected by unfair dismissal rights for certain reasons, and you must always follow the correct procedures. If you are facing a claim, it may be worth considering offering a settlement agreement to avoid having to go to an employment tribunal. The employment law team at CH Legal can explain the ins and outs of unfair dismissal, assess your situation and advise you on how best to proceed. To find out more, get in touch with Caroline Tomlinson or call 0845 4786 354.