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Protecting your business from unfair dismissal claims

Key Facts: Protecting your business from unfair dismissal claims.

The key to protecting your business from unfair dismissal claims starts with having solid policies and procedures in place. Inevitably there will be times as an employer you will have to consider dismissing an employee. Following the correct procedures, coupled with taking early legal advice will maximise the prospects of coming to a fair decision including any decision to dismiss which will protect against a potential claim being made against you or your business.

We can review your existing policies to ensure they are up to date with the current legislation and provide practical advice on the procedures for dismissal.

If an employee started work before 6 April 2012 they must have a minimum of one year’s continuous service to bring a claim for unfair dismissal. For employees who started work after 6 April 2012 they must have two years’ continuous service. There is also an extensive list of exceptions with some unfair treatment classed as being ‘automatically unfair’ and in such instances an employee can bring a claim regardless of the length of time they have been employed.

If an employee wants to file a claim at the employment tribunal they can do so free of charge. There are now no tribunal fees for the employee to pay; previously the fee for an employee to bring a claim was typically £1,200.00 but these fees were ruled unlawful by the Supreme Court in July 2017 and abandoned with immediate effect.

There are three types of unfair dismissal claims that an employee could bring against you: Wrongful dismissal, Unfair dismissal and Constructive unfair dismissal.

Wrongfull dismissal

Wrongful dismissal occurs when you do not adhere to the terms of your employee’s contract to carry out a dismissal. The employee is then entitled to claim for all the benefits that he or she would have received had they remained in employment until the end of their notice period or, in the case of a fixed term contract, until the contract was due to expire. We can advise on following the correct procedures with regards a dismissal, contact our experienced employment law solicitors for practical guidance.

Unfair dismissal

An employee may bring a claim against your business if they believe their employment has ended unfairly or the procedure used to dismiss them was unfair. There are 5 permitted reasons which may allow you to dismiss an employee:

1. Redundancy;
2. Capability;
3. Conduct;
4. Illegality and;
5. Some other substantial reason.

Each permitted reason has to meet certain requirements for the dismissal to be fair. We can advise and assist on this complex area to avoid a potential unfair dismissal.

Constructive unfair dismissal 

Constructive dismissal occurs when an employee considers that as a consequence of their employer’s conduct towards them they have no other option but to leave their employment. An employee will have to prove to the employment tribunal there was a serious breach of their express or implied employment terms. This can either arise from one serious isolated incident or a series of incidents that when taken together are considered serious enough for the employee to view there has been a breach of contract.

Example:

• you have imposed changes to your employee’s hours, or;
• you have demoted an employee without reason; or
• you have failed to address any bullying or harassment issues the employee has brought to your attention.

Employment law is a fast paced area of law, constantly being updated through legislation and case law. We have the resources available to act on behalf of your business regardless of its size providing you with up to date and practical advice to ensure your business is protected.

For a free informal initial conversation call Karen Heal on 01273 692550, or email kheal@edward-harte.co.uk.

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