What makes a dismissal unfair?
There are 5 potentially fair reasons for an employer to dismiss an employee:
- Where continued employed would break the law
- Some other substantial reason
In order for a dismissal to be fair, the employer must demonstrate that the dismissal was for at least 1 of these 5 reasons.
If the employer can demonstrate this, an employment tribunal would then consider whether it was in fact fair to dismiss the employee.
When considering the fairness of the dismissal, the employment tribunal will consider all the circumstances surrounding the dismissal including the size and resources of the employer, the investigation process and procedure followed. The employment tribunal will also consider whether the dismissal fell within the band of reasonable responses to the conduct alleged – was it proportionate?
When considering the investigation process and procedure followed, the employment tribunal will consider whether the employer followed the Acas Code of Practice on Disciplinary and Grievance Procedures. Amongst other things, the Acas code recommends that an employer:
Initially investigates the disciplinary matter which usually would involve holding an investigation meeting
If the employer finds that there is a case to answer, it should invite the employee to a disciplinary hearing in writing providing information about the disciplinary matter and the possible consequences of this.
The employer should inform the employee of the time and date of the disciplinary hearing and inform the employee about their right to be accompanied at the meeting by a colleague to a trade union representative.
The disciplinary hearing should be held without unreasonable delay and the employee should be given the opportunity to present their case during the hearing.
Following the disciplinary hearing if the employer decides to dismiss the employee, they should notify the employee of this in writing giving them an opportunity to appeal.
A failure to follow the Acas Code may result in the employment tribunal finding that the dismissal was unfair.
How to bring a claim of unfair dismissal
The first step in bringing a claim for unfair dismissal is to engage in the early conciliation process which is administered by Acas. The claimant must start this process within 3 months less 1 day of the date of dismissal. Acas will attempt to settle the matter between the parties.
If Acas are unable to settle the matter during the early conciliation procedure the claimant will be issued with an early conciliation certificate which allows the claimant to issue the unfair dismissal claim in the employment tribunal.
What can the employment tribunal do?
If the employment tribunal makes a finding of unfair dismissal, it can make the following orders:
Unfair dismissal case study
The following case is an example of a claim for unfair dismissal which we have recently dealt with.
The claimant had been employed by a local authority for 16 years and was dismissed for gross misconduct as it was alleged he had failed to obtain planning permission for matters relating to his own property and had therefore brought the employer's reputation into disrepute. We assisted the claimant in issuing his claim for unfair dismissal. The employment tribunal agreed that the claimant had been unfairly dismissed as the respondent had failed to carry out a proper procedure to establish the decision to dismiss was a reasonable one. The claimant received a significant sum which covered his loss of earnings up to the date of the tribunal hearing, at a time when the claimant was starting up his own consultancy business.
What should I do next?
If you feel that you have a claim for unfair dismissal against your employer speak to our specialists who will be happy to discuss your case with you. We appreciate that this is often a difficult time and we offer a range of funding options to assist you. In some circumstances we may be able to offer a ‘no win no fee arrangement’.
Please complete the enquiry form or call us on 0203 816 9302 and we will be happy to discuss your options and guide you through the process of making an unfair dismissal claim.