dismissal claims

3 dismissal claims you could face as an employer and how to avoid them

Dismissal claims are a minefield for employers – less so since the government introduced changes, such as lengthening the qualifying period for an unfair dismissal claim – but, nevertheless, this is an area for caution. Being able to dismiss staff fairly is an essential part of business management, both on a day-to-day basis and in the context of avoiding unnecessary risk. But what are the claims your business could face and how can you avoid them?

Unfair dismissal

If you terminate an employee’s contract of employment without a fair reason for doing so then there is the potential for an unfair dismissal claim to arise. Any member of your workforce who has been there for the ‘qualifying period’ (2 years if contract began after 6 April 2012, 1 year if before) has the right not to be unfairly dismissed. The only exception to this is where a claim for Automatic Unfair Dismissal arises (see below).

How to avoid a claim

A fair dismissal is made for one of the following reasons:

1. Lack of capability or qualification

2. Conduct e.g. dishonesty, non-attendance

3. A genuine redundancy situation

4. Another substantial reason, for example a personality clash or client refusal to work with an employee on the team.

Even if there are grounds to dismiss an employee on the basis of the above, a Tribunal must still agree that a reasonable employer would have dismissed an employee in similar circumstances, taking into account the actual employer’s size and resources.

Automatic Unfair Dismissal

Where a dismissal is connected to certain activities – such as whistleblowing, the employee asserting a statutory right (for example, maternity leave), a health and safety reason, or participating in trade union activities it will be considered automatically unfair and there is no need for the employee to have served the qualifying period.

Wrongful dismissal

A wrongful dismissal occurs where an employer terminates an employment contract in breach of contractual obligations or in breach of statutory obligations – dismissal without notice is the most common. The employee will need to establish a) a dismissal in breach of contract or with less than the statutory minimum period of notice and b) loss suffered as a result. A claim for wrongful dismissal does not require a qualifying period to be served.

How to avoid a claim

Make sure you have a good understanding of conditions that the law implies into employment contracts, such as the requirement to give notice. Be familiar your contracts and what they contain about dismissal, and pre-dismissal procedures, such as disciplinary processes and make sure that these are followed and documented as being followed.

Constructive dismissal

While not strictly a standalone dismissal category, constructive dismissal is important to note. This term will cover a situation where an employee has not actually been dismissed but has been forced to resign as a result of an employer breach of contract, for example unlawfully demoting an employee, reducing wages without agreement or unfairly increasing workload.

How to avoid a claim

A solid legal team can advise on whether internal processes and procedures are in accordance with the law and the contract in place. Regular policing of these systems is essential to make sure that no one in a position of responsibility in the business could open the company up to a constructive dismissal claim.

If you’re an employer and want to know more, speak to one of the team today on 0203 705 3080.

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