What is unfair dismissal and how to avoid it?

Any employee who has over two years’ service has the right not to be unfairly dismissed.

This means that if any dismissal of an employee, who has more than two years’ service, must be for one of five statutory reasons;

  1. Conduct
  2. Capability

III. Redundancy

  1. Statutory reason
  2. Some Other Substantial Reason

If the employee does not have two years’ service you do not have to base a dismissal on one of the above statutory reasons. You can dismiss the employee as long as you do so in accordance with the terms of the contract of employment without risk of an unfair dismissal. However, there are other types of claims which an employee could bring such as discrimination, whistleblowing etc.

If we are dealing with an employee who does have two years’ service in order to have a fair dismissal you need to have two elements; a fair reason for dismissal (one of the above statutory reasons) and a fair process.

Using an example. An employee has been employed for three years and you are concerned that they have bullied another member of staff. In this case you would have to undertake an investigation to establish the facts. This would involved keeping an open mind and obtaining documents, speaking with witnesses etc. After this you may decide that there is a case to answer and so you would convene a disciplinary hearing and allow the individual to have a representative present.

As an employer you would then have to think of an appropriate sanction. If you decide to fire the employee in question, they may subsequently bring an unfair dismissal claim.

You would have to demonstrate that there was an issue with conduct (i.e. bullying) and that you undertook a fair process. If these elements are not present you would face a finding of unfair dismissal.

There is a significant amount that can go wrong for an employer during a dismissal process and it its important to get the correct approach.