How to avoid an unfair dismissal claim
Posted on 1st September 2024
Disgruntled employees are unavoidable. There will always be occasions where someone is not happy with a decision you have made or they feel that they have cause to complain about an incident in the workplace.
John Lydgate once quoted, ‘You can please some of the people all of the time, you can please all of the people some of the time, but you can’t please all of the people all of the time’ and I have to say, in the world of employment, there was never a truer word spoken.
In many cases, the complaint is justifiable. And that is when it gets complicated.
As an employer, it is imperative that you are seen to be fair at all times. Unfortunately, on occasion, no matter how fair you feel you are being, you will not be able to stop a tribunal from happening. Taking appropriate steps in your business to avoid such a situation will certainly reduce the likelihood of a case being brought against you.
In this article, I am going to focus solely on unfair dismissal.
What is unfair dismissal?
Unfair dismissal is possibly one of the most common reasons an employee will take action against your company. When they feel that they have been terminated unfairly and proper procedures have not been followed, they may try and seek legal advice.
It may be deemed as unfair dismissal if one of the following applies;
➡️ There is no fair reason for the dismissal
➡️There was not enough evidence to deem dismissal as an appropriate action
➡️The employer did not follow the correct procedures before dismissing the employee.
There are automatic unfair reasons for dismissal. If your company dismisses an employee based on one of the following reasons, the employee is very likely to have reasons to bring a case forward.
🟢 Making a flexible working request
🟢 Asking for something that is their legal right. For example, minimum wage
🟢 Missing work for Jury service
🟢 Being a trade union member or representative
🟢 Being pregnant or on maternity leave
🟢 Being involved in whistleblowing
🟢 Wanting to take family leave such as parental, paternity or adoption leave
🟢 Being forced to retire
🟢 Taking action or threatening to take action over a health and safety issue.
These automatic unfair reasons for dismissal are protected and as an employer, it is your responsibility to ensure this does not happen.
Assuming that the reason for dismissal is not deemed as automatic unfair dismissal, I would like to take a look at how you can avoid an employee bringing forward an unfair dismissal case.
How to avoid an unfair dismissal claim
First and foremost, before taking any form of disciplinary action, you must ensure that any processes followed are fair and lawful.
➡️Investigate
Before considering whether you need to invite an employee to a formal disciplinary hearing, you will need to gather evidence. It is imperative that this is done without any pre judgement. Not only will you need to speak with the staff member involved but also with any potential witnesses including staff and management, depending on the circumstances.
It is so important that you gather as clear a picture as possible and avoid jumping to any conclusions.
➡️ Hold a disciplinary hearing
You will need to hold a formal meeting with the employee(s) involved and give them fair notice. A few days at the very least and put the invite in writing.
The letter must contain information of what is to be discussed. If there are several incidents, list each one individually and clearly outline the objectives.
Provide all the information that you have gathered evidence and outline that it will be discussed in the meeting to ensure they have fair warning.
Employees should be given the opportunity to bring a representative. This can be a colleague or a trade union official.
Let them know what could be the likely outcome of the meeting.
The employee has the right to choose their representative. If they are not available, you should postpone the meeting for a maximum of five days to allow them to attend. They should be given a reasonable amount of time to discuss the upcoming hearing. If they are both employed by the company, the discussions can be on company time and paid.
➡️ Treat the meeting with the respect it deserves
The employee has a right to reply. They should be given plenty of time to share their viewpoints on the issues raised. If they raise something that needs further investigation or bring further witnesses into the equation, the meeting should be adjourned to accommodate this.
Ensure you give the employee enough time to think about how they want to respond. The hearing does not just need to be fair but also needs to appear to be fair. You do not need to act on their response if not appropriate but you should ensure that they know that they have been listened to.
➡️ Making a decision
Do not be tempted to hand a letter to the employee outlining the outcome during the meeting. This will show that you have not considered their comments and it would give them cause to complain.
Either adjourn the meeting to discuss the findings or inform the employee that you are not going to make a decision on that day and you will write to them with the outcome. This also gives you time to carefully consider everything the employee has put forward.
Whatever the outcome (even if you decide not to give a warning), you will need to put it in writing. It is essential that the reasons for the decision, along with the process followed are outlined in the decision letter.
➡️ Right to appeal
The employee will have the right to appeal and this should be outlined to them when you are giving them your decision.
Where possible, avoid all relevant managers being at the initial disciplinary hearing. Ideally, if the employee chooses to appeal, someone not involved in the original hearing should conduct the appeal meeting.
This person should not be influenced by anyone involved. They should make their decision based on the appeal process and the facts presented to them by both sides.
Summary
Unfair dismissal cases are far more common than you may think and as an employer, you should take every step possible to avoid them. By being aware of up to date employment laws and following the correct procedures, you will significantly reduce the stress involved when a case such as this is raised. As always, I would suggest seeking professional advice from an HR expert before embarking on a disciplinary procedure and I am always happy to help if needed.
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