Unfair dismissal is a complex area of employment law, but one every employer should understand. In its simple form, the Law in the UK defines Unfair Dismissal as ‘Dismissing an employee without a fair reason to do so’.
There are five reasons whereby a dismissal is classed as ‘fair’. These include:
· Poor conduct
· Lack of capability in terms of health /or performance
· A genuine redundancy,
· A restriction / statutory requirement that prevents employment from continuing e.g. a delivery driver receiving a driving ban
· Some other substantial reason that explains the dismissal.
With this in mind, the following are deemed as Unfair Dismissal:
· A reason whereby the employee has been ‘Automatically Unfairly Dismissed’
· Dismissing an employee when the employer did not have a fair reason to do so and/or failing to follow a fair procedure.
There is a two year (minus one week) ‘qualifying period’ for Unfair Dismissal cases to make a Claim, however, there are instances when this rule does not apply these are known as automatically unfair dismissals. This is when an Employee’s Statutory Employment Rights are violated for example:
· Pregnancy/maternity/paternity matters;
· Exercising your right to receive National Minimum Wage;
· Dismissal related to health and safety representatives;
· Dismissal for refusal to work over 48 hours on average;
Before an employee can be ‘fairly dismissed’ an employer should generally follow a warnings procedure. This usually consists of:
· An informal meeting notifying the employee they need to improve within the workplace
· A verbal warning
· First written warning
· Final written warning
In cases whereby an employee has been dismissed for Gross Misconduct, an employer is legally able to skip these steps and go straight to dismissal – they must however still follow a fair disciplinary process carrying out a reasonable investigation, holding a disciplinary meeting and allowing the employee a right of appeal. Even if the employer can justify a fair reason to dismiss an employee, the dismissal may still be considered unfair if the correct and fair procedure has not been followed. An employee can find out what is classed as Gross Misconduct from their employer by asking for a copy of a staff handbook including policies and procedures.