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What is unfair dismissal?

16 January 2019
Richard Lozano

You will all have read cases in the newspapers, or you may even know of someone, who is awarded thousands of pounds in compensation by an Employment Tribunal for ‘unfair dismissal. However, what is an unfair dismissal?

Employers can dismiss an employee fairly, whatever the employee’s length of service, but they must do so for a fair reason and they must also carry out the dismissal process fairly.

Fair reasons include conduct, redundancy and capability. Most of the time it is easy for an employer to establish a fair reason and there is usually no argument taken about that.  The real test for the Employment Law Tribunal is usually whether the dismissal for that reason was fair in the circumstances.

In most cases an employee must have been employed by their employer for at least two years before they are able to bring an unfair dismissal claim. There are however exceptions to the ‘two-year rule’ which I shall mention below. If an employee with more than two years’ service is dismissed, then, provided a fair reason is established (such as conduct, performance or redundancy) an Employment Tribunal will go on to scrutinise the way in which the employer carried out that dismissal. The procedure followed when making a dismissal is very important to an Employment Tribunal.

The ACAS Code of Practice sets out a good practice guide for employers when carrying out disciplinary and grievance procedures. Essentially, in the case for example of a dismissal on the grounds of misconduct, the ACAS Code states that there are three main steps that an employer must take before dismissing the employee. The three main steps are:

  1. First, the employer should carry out as much investigation as is reasonable. This does not mean that an employer must investigate the alleged misconduct in the way in which the Police might forensically examine a crime. Rather, it means that the employer should act sensibly in the investigation. For example, if there is an allegation of a fight taking place between two employees, the employer would be expected to interview and take written statements from the two employees in question and anyone else who may have witnessed that fight. If CCTV may had captured the incident, the employer would be expected to review that footage. The employer would not be expected to interview all of the employer’s workforce for background information about the employees concerned – only those that can give directly relevant evidence.

 

  1. The second step is the disciplinary hearing. It will almost always amount an unfair dismissal if the employee is not given the opportunity to respond to the allegations at a formal meeting. The employee should be invited to this meeting by a letter that sets out the allegations faced. If a possible outcome of the hearing might be dismissal, then the letter should warn the employee of that. The letter should remind the employee of their right to be accompanied to that meeting by a work colleague or a Trade Union representative. Finally, if witness statements have been taken or other documentary evidence is to be relied upon to support the allegation, then the employee must be given copies of that evidence before the hearing takes place.

 

  1. The final step is the appeal. If an employee is issued with any type of disciplinary sanction, whether that be a formal warning or a dismissal, they must be given the chance to appeal. Again, a formal hearing should take place at which the employee is given the option of being accompanied. If possible, the appeal should be carried out by a more senior manager than the one who carried out the disciplinary hearing.

As with all aspect of employment law, it is vital to document everything. Minutes should be taken at the disciplinary and appeal hearings and the employee should be provided with copies of those minutes to approve.

At step two, and if the employer is satisfied that the employee did commit the act of misconduct, it can be difficult to know what the appropriate sanction should be. In some cases, it is obvious. For example, if the employee is guilty of theft, of a serious act of harassment or an act of violence, then summary dismissal for gross misconduct will inevitably follow. However, what about an employee who is found to have committed a less serious act of misconduct? Will it be found fair by an Employment Tribunal to dismiss in these circumstances?

The test the Employment Tribunal applies may surprise people. It might be expected that Employment Judges would ask him themselves “what would I have done in the employer’s positon”? If the Judge did that then that would be a legal error.

The test that the Tribunal applies is what is known as the ‘range of reasonable responses’ test. That is, the Tribunal believes that there is a range of sanctions different employers may apply in any given situation and, provided the employer’s decision was within that range, the dismissal will be fair. For example, there may be some instances of misconduct where one employer might dismiss but another employer might issue a formal warning. However, provided the employer’s decision to dismiss was within the bounds of what a reasonable employer might do, the Tribunal will likely find the dismissal to have been fair.

The Tribunal will take certain factors into account when considering the sanction, such as the employee’s length of service, their previous disciplinary record, whether they are likely to repeat the offence and the effect their actions might have had upon their colleagues.

It should be remembered that whilst in most cases an employee must have two-years’ service to bring an unfair dismissal claim, there are some exceptions to that rule. For example, if an employee is sacked because of sex, age disability, gender, marital status, race, ethnicity or nationality, religion or your belief, sexuality or age, this will be discriminatory and will lead to a claim for damages.

Other dismissal are ‘automatically unfair’ and these claims can be brought by employees from their first day of employment. In these cases, the employee does not need two-years’ service.  For instance, if an employee is dismissed because they:

  • have asked for their legal rights to be met (for example, to receive the minimum wage)
  • have reported their employer for wrongdoing (in other words, they are acting as a whistle-blower)
  • are pregnant or are off work on maternity leave.
  • are a member of a trade union and took part in official industrial action, or were acting as an employee representative.
  • took action over a health and safety issue.
  • in relation to certain business transfers.

then these can all amount to unfair dismissal.

It is important to get legal advice before dismissing an employee or, if you are an employee, and have been unfairly dismissed. Often, only an hour’s advice is enough to advise upon the fairness of a dismissal or the process required to make a fair dismissal.

If you believe that you have experienced unfair dismissal or you are employer and need advice upon the dismissal process, please call Richard Lozano on  01302 341414 or Email Richard.l@taylorbracewell.co.uk for even more information on employment law get in touch.