In this post we’re going to take a look at the merits of an unfair dismissal claim in the Employment Tribunal against an employer and what employers should look for in assessing a claim. This will involve an examination of the following:
- Is the claim in time?
- What did you dismiss the Claimant for?
- Was the Claimant at fault for the dismissal?
- Was a fair procedure used to dismiss the Claimant?
- Was a reasonable decision taken to dismiss the Claimant
- How to prevent unfair dismissal claims against you
Disclaimer: it is recommended that you obtain independent legal advice from a firm of employment law solicitors if you are threatened or presented with an unfair dismissal case
Is the claim in time?
This is a crucial issue – the Claimant has three months less one day from the effective date of dismissal to submit a claim for unfair dismissal to the Employment Tribunal. For example, if the Claimant was dismissed without notice on 2 February 2013 then they have until 1 May 2013 to make a claim for unfair dismissal. If they fail to submit their claim on or prior to this date then their claim will most likely be time-barred, unless it was not reasonably practicable for the Claimant to submit the claim on this date.
What did you dismiss the Claimant for?
This is another important consideration – the Claimant should have been given a reason which counts as a “potentially fair reason” when they were dismissed. If the Claimant was dismissed without reason then you’re in trouble; the likelihood is in these circumstances that the dismissal will have been unfair. If you did give a reason for the Claimant’s dismissal then this will normally fit into one of the six “potentially fair” reasons – conduct, competence, redundancy, illegality, retirement and SOSR (some other substantial reason).
Was the Claimant at fault for the dismissal?
If the Claimant was at fault for the dismissal then this may impact on both liability (whether the dismissal was fair or not) and/or remedy (how much the Claimant is awarded by the Employment Tribunal if they succeed with the claim for unfair dismissal). It’s highly likely that credible evidence of culpable conduct on the part of the Claimant will serve to undermine their claim or substantially reduce the sums they’re awarded.
Was a fair procedure used to dismiss the Claimant?
This is one of the key considerations in an unfair dismissal case. In dismissing an employee you must carry out a fair procedure in doing so. The absolute mechanics of what constitutes a fair dismissal is too complex to cover in detail in this post (as it depends upon the facts of the dismissal and the particular employee) but, as a rule, an investigation should be carried out into any allegations, the Claimant should be allowed to put their case properly, a disciplinary hearing should be arranged, a fair and impartial person should carry out the investigation and the disciplinary, and (if necessary) a disciplinary appeal hearing should be offered and carried out.
Was a reasonable decision taken to dismiss the Claimant?
This is the other key consideration and rests on an evaluation of the Burchell test of fairness – whether it was within the reasonable range of responses to dismiss the employee. Again, the mechanics of what constitutes a reasonable decision depends on the facts of the matter but, as a rule, three things should be considered (in this case in a “conduct” dismissal) – did the dismissing officer have an honest belief that the employee was guilty of the allegations; if so, was that belief one which was reasonably held; was a fair and reasonably thorough investigation carried out; and was dismissal fair and proportionate in the circumstances?
How to prevent unfair dismissal claims against you
There are a number of means that employers can use to prevent unfair dismissal claims against them. The two main means are:
- Enter into a compromise agreement with the employee after you dismiss them – if you take this route then you should advise the employee to obtain independent legal advice (for example, from a firm of compromise agreement solicitors) before they sign the agreement
- Take careful and thorough steps to ensure that you’re making a reasonable and fair decision in dismissing the employee – the majority of Tribunal claims can be avoided if the disciplinary process is handled in a painstaking and fair fashion and, further, the more careful you are, (generally) the less likely the Tribunal is to rule in the Claimant’s favour
Redmans are solicitors specialising in employment law advice based in London
Redmans
Latest posts by Redmans (see all)
- UK Government announces plans to force firms to reveal gender pay gap - February 19, 2016
- LJ Jackson calls for fixed costs to be applied to all claims valued up to £250k - January 30, 2016
- European Court ruling regarding ‘travel to work’ could raise costs for business - September 14, 2015
