Unfair dismissal

Lord Sugar’s iconic parting shot may be the perfect dramatic climax, but ‘you’re fired’ are words rarely heard in workplaces these days.

When it comes to employees (and remember that contestants on The Apprentice are not), the law lays down some pretty strong protections. One of these is the right not to be unfairly dismissed. It applies to employees who have worked for their employer for at least two years. It’s a way of making sure that they are not ‘fired’ on a whim and without a good reason and a fair process.

This places a significant responsibility on employers to understand what is and isn’t fair in this context. The starting point is the potentially fair reasons for dismissing:

•   The employee’s conduct;

•   The employee’s capability or qualifications;

•   Redundancy;

•   The employment can’t continue because of a statutory or regulatory restriction (a delivery driver loses his driving licence, for example); and

•   Some other substantial reason.

An employer must base its decision to dismiss an employee on at least one of those five reasons if it is to stand a good chance of avoiding a finding of unfair dismissal. They must also make sure to follow a fair process involving an investigation, meetings with the employee, and an appeal. And the decision to dismiss must be reasonable.

Where an employee has less than two years’ service, employers sometimes take a less rigorous approach because the threat of ordinary unfair dismissal is not there. But that is not a risk-free approach. Firstly, the possibility of discrimination is live, regardless of how long someone has worked for you. You could be liable for wrongful dismissal if you don’t comply with the termination provisions in the employee’s contract. Also, in some situations, dismissal can be ‘automatically’ unfair. These include (there are lots more) where dismissal is:

•   for a health and safety reason;

•   connected with pregnancy;

•   for whistleblowing.

A point to remember in all this is that, while the rules may be strict, the law shouldn’t put you off dismissing where that is the right thing for your business. It’s a case of taking things step-by- step; really understanding the full circumstances, taking on board the employee’s side of things, being thorough in your investigation, and reaching a fair decision. It’s a process that usually takes a fair amount of effort, but that is what’s needed if you’re to stay on the right side of the law.

For advice about any aspect of unfair dismissal, or any aspect of employment law, please contact Julian Cole on 01264 353411 or email info@bsandi.co.uk. We will be happy to help.