Unfair Dismissal – How to Avoid

An Employment Tribunal By: Helen Gardiner

On: 5th November 2014 @ 13:00

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UNFAIR

DISMISSAL

- an overview -

by

Helen Gardiner

hgardiner@st-Philips.com

Employment Rights Act 1996 (“ERA”)

Dismissal unfair unless:

• the employer can show that the reason (or the principal

reason) for the dismissal was a potentially fair reason.

There are 5 potentially fair reasons, as we shall see; and

• the tribunal finds that, in all the circumstances (including

the employer’s size and administrative resources) the

employer acted reasonably in treating that reason as a

sufficient reason for dismissal. That means that the

dismissal must be both procedurally and substantively fair.

Unfair dismissal – an overview

Acas Code of Practice on Disciplinary

and Grievance Procedures

Unfair dismissal – an overview

Applies to dismissals for misconduct or poor performance.

Must be taken into account by tribunals.

ESSENTIAL READING!

Download at:

http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_

on_disciplinary_and_grievance_procedures-accessible-version-

Jul-2012.pdf

Who can claim?

• Employees.

• In most cases, need 2 years’

continuous service.

• No qualifying period necessary

for automatically unfair

dismissals, or where dismissal

is because of political

opinions/affiliation.

• For dismissal in circumstances

of medical suspension,

qualifying period is 1 month.

Unfair dismissal – an overview

What is a

dismissal?

Termination by employer.

Expiry of fixed term conract.

Constructive dismissal i.e.

resignation.

Unfair dismissal – an overview

Potentially fair reasons Capability/qualifications

Conduct

Redundancy

Breach of statutory

duty/other restriction

Some other substantial

reason (“SOSR”)

Capability

Skill, aptitude, health or any other physical/mental quality.

Capability must relate to the work the employee was

employed to do.

Usually 2 main groups:

• Dismissal because of an employee’s poor performance; and

• Dismissal because of an employee’s ill health.

Unfair dismissal – an overview

Conduct

• Either single act of serious misconduct or series of acts

that are less serious.

• Make sure examples in staff handbook are not exhaustive.

• Don’t be prescriptive in assessment of gross misconduct.

• Can be dismissed for conduct outside of the workplace so

long as it affects/could affect employee when he is doing

his work.

Unfair dismissal – an overview

Conduct continued

To establish dismissal was on grounds of conduct, must establish

that:

• at the time of dismissal, the employer believed the employee to

be guilty of misconduct.

• at the time of dismissal, the employer had reasonable grounds

for believing that the employee was guilty of that misconduct.

This goes to the question of reasonableness.

• at the time that the employer formed that belief on those

grounds, it had carried out as much investigation as was

reasonable in the circumstances. Again, this goes to the

question of reasonableness.

Unfair dismissal – an overview

Redundancy

Redundancy situation? Only if dismissal wholly/mainly attributable

to:

• the employer ceasing or intending to cease to carry on the

business for the purposes of which the employee was so

employed;

• the employer ceasing or intending to cease to carry on that

business in the place where the employee was so employed; or

• the employer having a reduced requirement for employees to

carry out work of a particular kind or to carry out work of a

particular kind at the place where the employee was employed

to work.

Unfair dismissal – an overview

Redundancy continued

• Put employees on notice they are at risk.

• Consult.

• Make a genuine attempt to find suitable alternative roles.

• Beware statutory requirements for consultation in mass

redundancy situations.

Unfair dismissal – an overview

Statutory restriction

Potentially fair if the employee could not continue to be

employed without him or the employer breaching statute.

Egs:

• Breach immigration laws.

• Lost driving licence.

• Not got necessary qualifications.

Unfair dismissal – an overview

Some other substantial reason

• Catch all provision.

• Only need to establish a reason for the dismissal which is

of a kind that could justify the dismissal of am employee

holding the job in question. Don’t need to show that it

actually did justify the dismissal.

Unfair dismissal – an overview

The ‘fairness’ test

Section 98(4) ERA:

The determination of the question of

whether the dismissal is fair or unfair

(having regard to the reason shown by

the employer) –

(a) Depends on whether in the

circumstances (including the size

and administrative resources of the

employer’s undertaking) the

employer acted reasonably or

unreasonably in treating it as a

sufficient reason for dismissing the

employee, and

(b) Shall be determined in accordance

with equity and the substantial merits

of the case.

Unfair dismissal – an overview

Two limbs to the

fairness test

• Substantive fairness

• Procedural fairness

Polkey v AE Dayton Services Ltd:

o Procedurally unfair dismissal is

always unfair. Can’t argue “no

difference”.

o Reduction in compensation to

reflect the chance there would

have been a fair dismissal if

employee wasn’t unfairly

dismissed.

Unfair dismissal- an overview

Fair procedure

Basic principles:

• Employee should know

they are at risk of

dismissal and why.

• They should be allowed

to make representations.

• They should be given a

right of appeal.

Acas Code:

• Investigate issues.

• Inform employee of

issues in writing.

• Conduct a disciplinary

hearing or meeting with

the employee.

• Inform the employee of

decision in writing.

• Give employee right of

appeal.

Unfair dismissal – an overview

Substantive

fairness

• Was the decision to dismiss

within the range of reasonable

responses that a reasonable

employer in those

circumstances and in that

business might have adopted?

• Tribunal must not substitute its

view for that of the employer.

• Test applies to investigation and

the decision to dismiss.

Unfair dismissal – an overview

Reasonableness - capability Tribunal will consider:

• Whether the employee knew what was required of them.

• Whether the employer took steps to minimise the risk of poor

performance.

• Whether there was a proper appraisal of the employee and the

problem was identified.

• Whether the employer provided training, supervision and

encouragement.

• Whether the employer warned the employee of the consequences of

failing to improve.

• Whether the employer gave the employee a chance to improve.

• In some cases, whether the employer considered alternative

employment.

Unfair dismissal – an overview

Reasonableness - SOSR

Depends on the circumstances of the case, but could involve

the employer:

• Investigating the situation.

• Consulting with the employee.

• Warning the employee of the risk of dismissal.

• Giving the employee an opportunity to state their case.

• Exploring alternatives to dismissal.

• Balancing the needs of the employer and employee.

Unfair dismissal

Automatically unfair reasons for dismissal

• If the employee was dismissed “for the purpose of

safeguarding national security”.

• If the employee was participating in unofficial industrial

action at the time of dismissal.

• If the employee was participating in official industrial action

at the date of dismissal and the employer has dismissed all

participating employees.

• If the employer is conducting a lockout at the date of

dismissal and has dismissed all employees with a direct

interest in the dispute.

Unfair dismissal – an overview

Procedure for claiming

1. Employee must contact Acas to see if the complaint can

be settled through Acas early conciliation.

2. If not settled, must issue a claim within 3 months minus

one day of dismissal (though limitation extended by

conciliation process).

3. At tribunal, if successful the employee may claim

reinstatement, reengagement or compensation.

Unfair dismissal – an overview

Thanks and Questions

Unfair dismissal – an overview

Contact me:

Helen Gardiner

hgardiner@st-philips.com

Tel: 0113 244 6691

www.st-philips.com

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