Unfair / Wrongful Dismissal - Employers
Unfair dismissal and wrongful dismissal are entirely separate concepts. A dismissal may be unfair or wrongful, both, or, indeed neither.
Every eligible employee has the right not to be unfairly dismissed by his employer. In order to give the employee a measure of protection against dismissal, the statutory claim of unfair dismissal introduced the concept of fairness into the termination of employment contracts. Now, an employer must be able to show that, not only did he have good reason to dismiss, but also that he acted fairly in doing so.
An employer must be able to establish that the only, or principal reason for the dismissal, was a potentially fair reason. The permitted reasons are; capability (or qualifications), conduct, redundancy, illegality (for example a delivery driver being disqualified from driving), retirement, or some other substantial reason. There are circumstances where any dismissal will be automatically unfair. In summary, these are:
- Pregnancy or maternity-related dismissals
- Dismissal for trade union reasons
- Selection for redundancy based on either of the above
- Dismissal following industrial action
- Dismissal for asserting a statutory right
- Health and safety dismissals
- Some dismissals on transfer of a business
- Dismissals where the worker has made a protected disclosure
The ACAS Code of Practice on discipline and grievance procedures sets down minimum standards that an employer should adopt.
Employees should be given the right to appeal a dismissal internally with his employer in the first instance. The letter confirming an employee’s dismissal should set out how to appeal and the deadline for doing so.
If you are contemplating dismissing an employee, our employment law solicitors can advise you on the procedure which you should follow and how best to deal with the matter. If you face a claim for unfair dismissal, we can advise you on the merits of the case and, if need be, represent you in the Employment Tribunal. Our specialist employment lawyers have successfully defended many businesses against unfair dismissal claims. Often, our employment lawyers are consulted late in the day by businesses hoping that the matter would resolve itself or fearful of being told a mistake has been made. In such cases, we are often very effective in limiting a business’ exposure as much as possible. We can provide pragmatic and tailored advice relevant to your circumstances.
The remedies available to an employee, should the Employment Tribunal find that the dismissal was unfair are; reinstatement or re-engagement or compensation. There are very strict time limits for a claim for unfair dismissal to be presented to the Employment Tribunal (usually three months from the effective date of termination of employment). We would urge you to seek professional advice at the earliest opportunity if a claim is made against you. Our employment law solicitors are able to offer you specialist advice on your particular circumstances and discuss your options with you.
Wrongful dismissal occurs where a dismissal takes place in breach of contract (typically a failure by the employer to give an employee the contractual notice to which he/she is entitled when the circumstances do not justify instant dismissal). A claim for wrongful dismissal can be brought in either the Employment Tribunal or civil courts. If brought in the Employment Tribunal, it must be presented within three months of the date when the claim arose. A claim in the civil courts for wrongful dismissal, however, can be brought within six years.
If you are considering dismissing an employee, it is vital to have in mind the contractual entitlements of the employee. If you face a claim for wrongful dismissal you should not hesitate to contact our employment law solicitors to discuss the best way in which to deal with the matter. Our specialist employment lawyers will be able to offer you pro-active and cost-effective advice promptly.
- Performance Management Getting the best out of employees is one of the biggest challenges faced by managers. Karen Cole, employment law specialist at Warners Solicitors in Tonbridge, looks at what managers can do to manage performance and, if necessary, how to dismiss an underperforming employee..
- Managing Mental Health Issues at Work A serious mental health issue will often constitute a disability, whether it is a long-standing problem or something that has been diagnosed recently Karen Cole shares advice for employers on discrimination and how to avoid claims...