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How can businesses avoid unfair dismissal claims?

With 13,300 Unfair Dismissal claims being brought to Employment Tribunals in 2015/16 and an average compensation award of £13,851 per claim*, knowing how to avoid them is essential for employers.

What is Unfair Dismissal?

If an employer does not have a good reason for a dismissal or doesn't follow the correct procedure, the employee in question could be entitled to claim Unfair Dismissal, provided he/she has been employed by the organisation for at least two years.

When conducting a dismissal, there are five potentially fair reasons in law which an employer can use as its justification:

  1. A conduct related reason
  2. A reason related to the employee’s qualifications or capabilities
  3. A redundancy related reason
  4. Because a statutory duty or restriction prohibited the employment from continuing
  5. Another substantial reason such as personality clashes or third-party pressure

If an employee successfully alleges they were dismissed for one of the following reasons (amongst others), the dismissal would be automatically regarded as unfair irrespective of how much employment service he/she has accrued:

  • Requesting flexible working
  • Asking for maternity/paternity leave
  • Joining a Trade Union      
  • Needing time off for jury service
  • Exposing wrongdoing in the workplace (whistleblowing)
  • Refusing to give up working time rights

The process of dismissing an employee

An employer might assume that avoiding Unfair Dismissal claims is easy once they know the legal reasons for dismissing an employee. However, the procedure followed to carry out the dismissal is just as important and is often where employers fall down.

Ensuring that an employee is involved throughout the process, is allowed to be accompanied to meetings, and is given the right to appeal any outcome are just some examples of the procedural requirements that need to be met.

Below are some tips to help employers manage dismissals and potential dismissible situations to minimise the risk of an Unfair Dismissal claim.

1.  Resolve all issues as soon as they occur
  • Tackling issues with employees as soon as they occur is an effective measure to prevent them from escalating.
  • Try to resolve problems as and when they arise by holding informal meetings.
  • Make it clear to the employee that a more formal process could be used if the issue is not resolved.
  • Involving HR at an early stage is advisable.
2.  Use probationary periods effectively
  • Depending on the wording of the contract, if there are legitimate concerns about a new employee, it may be possible to extend the probationary period or dismiss them at the end of it.
3.  Conduct regular appraisals
  • Conduct regular appraisals with employees to give an honest assessment of their performance and allow them to raise any concerns.
  • Do not give overly-flattering performance reviews if they are undeserved or exaggerated as it could make proving a fair dismissal more difficult in the future.
  • Ensure there are written records for each appraisal.
4.  Be aware of how stress affects performance
  • Stress, in severe cases, could be classed as a disability in law or could lead to other disabilities. It could also form the basis of a personal injury claim.
  • If stress could be a reason for an employee’s poor performance (for example they are struggling with the workload), involve HR immediately as extra care needs to be taken.
  • Also be mindful that stress is often a factor in Constructive Dismissal claims, where an employee has resigned because of the behaviour of the employer. A signal for this potential situation could be the submission of a grievance by an employee so ensure this is properly and thoroughly handled.
5.  Avoid Victimisation
  • If an employee has raised a grievance or claim in the past, ensure that any further allegations against that employee are dealt with fairly and without influence from the previous issues, to avoid victimisation.

Next Steps

HR and Employment Law responsibilities for a business can be a significant challenge. By outsourcing HR to a team of Employment Law specialists, businesses can ensure that:

  • Risk is prevented through greater awareness of the correct approach to employment matters
  • Management time spent on disputes is reduced
  • Employee/employer relations are improved

With the help of specialists, employers can take practical and considered steps to minimise the risk of Unfair Dismissal claims.

Wildings Solicitors

* Source: https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2016

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Wildings Solicitors directly.

Published on 13th July 2017
(Last updated 21st March 2018)

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