Have you been unfairly dismissed? Are you facing an unfair dismissal claim against your company?
Laveer legal are employment law experts and assist both employers and employees with their employment law problems and tribunal claims.
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What is the difference between fair and an unfair dismissal?
The dismissal of an employee is the process of ending their contract of employment. To carry out a fair dismissal, as an employer you must first have a fair reason for dismissing an employee.
And what happens in the event you fail to ensure a dismissal is fair?
This can result in penalties such as having to pay a hefty sum in compensation and reinstating the employee (giving them their job back), so the need to ensure that the dismissal is fair is important.
The potential reasons that will allow you to carry out a dismissal on fair grounds are:
An Employee’s Conduct
This refers to your employee’s terms of employment being breached as a result of some of the following behaviour:
- Poor discipline
- Missing work
An Employee’s Capability
An employee’s inability to do their job properly which may be caused by reasons such as:
- Long-term illness preventing them from carrying out their duties
- Unable to get along with colleagues
- Poor performance
The role of your employee becoming obsolete as a result of:
- The restructure of the business
- Fewer workers being required
- Relocation of the business
A situation where continuing to employ a worker would result in you breaking the law and being liable to legal action:
- A driver losing their driving license
- An employee getting a negative DBS (formerly CRB) check
You may also have some other substantial reason for deciding to dismiss an employee and providing this reason is fair, you can actively begin the dismissal process. Some examples of reasons that fall under this category include:
- If the business relocates
- The employment period ends, for example; you employ someone temporarily as maternity cover and dismiss them when the cover period ends
As often happens, things are not always straightforward.
Even if your reason for dismissal if fair, you must also act reasonably and fairly during the dismissal procedure. A failure to do so can result in an employee who is successful in their tribunal claim receiving up to a 25% uplift in their award.
To complicate things further, there is no statutory definition of ‘reasonableness’.
The tribunals usually take into account things such as your company’s size and resources along with other factors such as whether you followed the relevant procedures and if a proper investigation was carried out where appropriate; these are just a few of the elements that are considered.
Also, dismissal on the grounds of conduct or capability would not usually be deemed fair if it was a first time offence or issue, except in the case of Gross Misconduct, and even that is subjective and open to interpretation.
If you are considering terminating an employee’s contract, it is strongly advisable to seek legal advice before doing so to avoid a problematic and costly tribunal.