Trying to dismiss an employee is never easy, and many firms will put off dealing with a problem or underperforming employee for fear of facing an employment tribunal suit.
While the termination process may seem confusing and dangerous, neglecting to address problem workers may have long-term consequences for many firms, and waiting to act can harm the company in both the short and long term.
Unjust and wrongful dismissal
Wrongful dismissal occurs when an employer violates an employee’s contract by terminating employment without giving the employee enough notice. A wrongful dismissal suit is often restricted to the salary and benefits the employee would have earned during the employment contract’s notice period.
When an employee’s job is terminated without a legitimate reason from the employer, this is known as unfair dismissal. Alternatively, dismissal might be fair in principle, but it is unjust due to the employer’s failure to follow the proper process.
It’s worth mentioning that an employee must have worked for at least two years before filing an unjust dismissal claim with the employment tribunal. However, the ‘qualifying period,’ as it is known, does not apply to discrimination claims.
As a consequence, employers will have to be very forthcoming about the reasons for any dismissal proceedings. For example, they must ensure that they are not discriminating against the employee in issue or that the reasons for any underperformance or misbehaviour are related to any of the protected characteristics listed in The Equality Act 2010, such as disability resulting in sick leave.
For an unfair dismissal suit, there is no waiting period.
What is fairness?
A reasonable termination is based on one of five possible justifications. These include the individual’s behaviour, capacity or credentials for the work, redundancy, a legislative requirement or constraint that prevents the employee from being prolonged, or major grounds for dismissal.
Employers must also verify that the dismissal method they use is procedurally fair, in addition to having a possibly reasonable cause as a baseline. This implies they must adhere to their disciplinary policy and the ACAS Code of Conduct (which in practice is likely to be similar to the policy). Any damages granted to a wrongfully fired person might be increased by 25% if the ACAS guideline is not followed.
“Employers must also make sure their dismissal procedures are procedurally fair.”
Furthermore, an employee should be aware of the claims against them and the possibility of dismissal; they should be able to make submissions, be accompanied during disciplinary and appeal hearings, and have the opportunity to appeal.
The following are all possible justifications for terminating an employee:
When an employee’s behaviour is inappropriate, such as being consistently late or intoxicated at work, this is referred to as conduct.
Capability: When an employee lacks the necessary skills or aptitude for work or is regularly absent due to illness.
Before dismissing an employee, you must always consider training to enhance skills or relocating them to a suitable alternative role with their cooperation. It’s important to remember that it’s illegal for an employer to discriminate against someone with a handicap. You have a legal obligation to make “reasonable changes” to workspaces and working practices to ensure that individuals with disabilities are not significantly disadvantaged compared to others.
Legality: To avoid breaching the law, such as when a taxi driver’s licence has been suspended, they cannot drive lawfully.
Redundancy: For example, if there isn’t enough work or an employer is going out of business.
Another compelling argument — This is known as the “catch-all” excuse, but it should be used with caution since you must demonstrate that the reason was “significant.” A large corporate reorganisation may be one example.
Of course, none of the above examples is “fair” for reasons until the protocol has been followed and the complaints have been examined and verified. Failure to follow the process will very certainly make a possibly reasonable dismissal procedurally unjust.
The maximum amount for unjust dismissal compensation is £89,493, or 52 weeks’ gross income — whichever is lower. These restrictions apply to dismissals that occur on or after April 6, 2021.
How to remain on the right side of the law
Employers must have thorough and up-to-date employment contracts in place, and they must be able to demonstrate that they followed the processes outlined in these contracts fairly and professionally.
In circumstances where dismissal is a possibility, they must be very cautious to ensure that all procedural processes are followed. They may also wish to seek outside counsel from an employment lawyer or HR professional to help them through the process and act as a third-party observer.
Employers that terminate employees unilaterally or without considering the five possibly just grounds stated previously run the danger of facing a tribunal suit. In any case, it’s always a good idea to get comprehensive legal counsel on any situation that potentially leads to an employee’s dismissal.
