Under Section 95 of the Employment Rights Act 1996, every employee has the right not to be unfairly dismissed by their employer.
To be successful in a claim for unfair dismissal, the employee must have been employed for a period of one year or more except in certain circumstances and they must prove that they have been dismissed. The onus is then on the employer to show that a dismissal was for one of five permitted reasons:
Redundancy
A redundancy situation arises when either you are planning to close down your business, or part of the business, at the location where employees work; or where your business no longer needs as many employees to carry on a particular kind of work;
In order for a Redundancy dismissal to be fair, a full and proper procedure must have been carried out. Failure to do so is likely to result in the employee to being entitled to claim Unfair Dismissal as well as an uplift on the compensation awarded from between 10-50%.
Illegality
Situations may arise where the employee has committed or has been accused of a criminal offence either at work or out of working hours. In some situations, it may be reasonable to dismiss that employee. For example, if it is essential for the employee to hold a driving licence in order to be able to carry out their employment and they lose their licence then it may be necessary to dismiss them.
Capability
If an employee is not up to the job for which they have been employed, or if they are ill and are absent from work for long periods of time then dismissal under capability would be reasonable.
However, as well as ensuring that dismissal is reasonable in the circumstances, you must ensure that a full and proper procedure is carried out as failure to do so is likely to result in the employee being successful in a claim for unfair dismissal against you as well as an uplift on the compensation awarded from between 10–50%. See Disciplinary Procedures for more information.
Conduct
Breaches of discipline at work are perhaps the most common reason to dismiss an employee.
As with any dismissal, it is important to ensure that dismissal is reasonable in the circumstances and that a full and proper procedure has been carried out as failure to do so is likely to result in the employee being successful in a claim for unfair dismissal as well as uplift on the compensation awarded from between 10-50%. See Disciplinary Procedures for more information.
Some other substantial reason
If it can be shown that the reason for the dismissal of an employee was a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’ the dismissal is regarded as potentially fair even if it is not one of the specific potentially fair reasons.
The purpose of this particular reason is to widen the provisions in order to prevent employers being unnecessarily restricted from dismissing an employee where dismissal would be appropriate but that the reason does not necessary fall into any of the other reasons.
Even in the event that the employer is able to show that the dismissal was for one of the five fair reasons, they must still satisfy an Employment Tribunal that a full and correct procedure had been carried out.
We provide advice on how to dismiss someone fairly as well as dealing with situations where Unfair Dismissal has occurred.
If the systems you have in place for your company are not coming up to scratch then why not give us a call on 01908 660 966 or fill out our online contact form. Our dedicated employment team can help.
