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Can A Dismissal Be a Fair Dismissal?

In the world of employment law we sometimes lose sight of the fact that not every dismissal is an unfair dismissal. Each and every day there is some employee somewhere who has engaged in a singular act or multiple acts over time that justifies there dismissal. Equally, there are some employees out there who have been dismissed who don’t deserve to be dismissed in the circumstances. Finally there are those employers who can probably justify a dismissal but they fail to follow the correct fair disciplinary procedures in doing so. The unfortunate aspect is that we all know that tribunal claims can be a time consuming and costly affair. The cost to businesses can be significant and is not limited to the financial element of any compensation or award: It is a general rule that businesses do NOT recover their costs even when they are successful at tribunal. As those of you who have experienced a tribunal first hand will know, much time will be lost in preparing for and attending the tribunal itself. You might then also have to deal with the additional pressure of managing any adverse publicity and press headlines.

With this in mind let’s consider how we can look to dismiss an employee whilst avoiding a potential Tribunal claim;

1. Check the contract – We are often asked by employers if they can dismiss an employee and our first step is always to check the contract. In order to avoid a tribunal it is important to check what steps or procedures must be followed – your disciplinary procedures are particularly important as they will detail expected conduct and performance standards required from the employee. Your procedures will also detail the steps that must be taken in handling any issues which arise, which includes those that may ultimately result in dismissal.

2. Check length of service – It is important to act promptly when employee is in a probation period or under a year service. If an employee is unsuitable for the role it is less risky to dismiss during this time, as they cannot claim for unfair dismissal unless citing discrimination issues or an automatically unfair reason. If an employee has long service then this ought to be taken into account when reaching your outcome, particularly if the employee has had a clean disciplinary record.

3. Record all issues – One of the easiest mistakes employers make is failing to record all issues with an employee. Quite often this is a result of good faith on the part of the employer who may hope for improvement or wish to avoid an unpleasant situation, but we would advise you to fully document all issues. When it comes to considering disciplinary action, including that which may result in dismissal, this record of issues could prove to be important evidence and also the foundation on which you look to your formal procedures.

4. Plan ahead – At the start of any disciplinary process we’d suggest you plan ahead as to who may be able to deal with each stage so that a different person is available to deal with each stage of the process. We’d advise the most senior person should be kept to take the appeal meeting and should not therefore be involved at investigation or disciplinary stages.

5. Fully Investigate – Sometimes the first impression is the wrong impression. Never make assumptions and predetermine the outcome. This is crucial if you are following a procedure where the potential outcome is dismissal.

6. Dot your ‘I’s and cross your ‘T’s – A paper trail is essential to limiting the risk of dismissing an employee. You should record all minutes, correspondence and evidence. Ensure also to get all minutes signed by the employee as this will demonstrate that the employee has agreed with the minutes and that they are a true reflection of what was discussed.

7. Ensure that you have a fair reason to dismiss – There are a number of fair reasons for dismissal provided for in statute, and these include Conduct, Capability, Redundancy, Statutory Restrictions and Some Other Substantial Ground (SOSG). If an employee is eligible to present a claim to a Tribunal for unfair dismissal it will be for you, the employer, to show that you had a fair reason to dismiss under these categories and in the specific set of circumstances.

8. Act reasonably – What is reasonable? It is important that you act reasonably in order to limit the potential for an employee to consider tribunal action. In a conduct sense, for example, we’d suggest you ask yourself;

  • Have you acted consistently with all employees in the same situation?
  • Would you dismiss another employee for the same allegation?
  • Are there reasonable grounds for belief that the employee has done wrong?

9. Make sure you give the right of appeal – Remember the process does not end at the point of dismissing the employee. Be sure to issue a written outcome and include the reason for the dismissal. Make sure you also give the right to appeal and include details of the person they should write to and the timescale for doing so. As above, this appeals person should be the most senior person in the company, where possible, and they should not have been involved at either the investigation or disciplinary stages.

10. TAKE ADVICE – That’s what we are here for! Employers should seek advice from Peninsula Business Services when faced with any potential dismissal issue, be it conduct, capability, redundancy etc. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.

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