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How To Avoid Unfair Dismissal Claims When Terminating Employment

Anisha Vaswani

Dismissing an employee, particularly as a small business is never a straightforward process and may lead to concerns around a potential claim against you for unfair dismissal. That being said, it is crucial not to delay dealing with problematic employees because of this, as this may lead to long term problems in the business.

In order to understand your rights to fair or constructive dismissal, it is firstly important to understand what unfair dismissal entails. An unfair dismissal claim is likely to arise where you terminate an employee’s contract, without a fair reason or without using the correct procedure.

You are not permitted to dismiss an employee under the following circumstances:

1.    Discrimination

It is strictly not permitted to let go of an employee due to their age, sex, gender, race, religion, disability, or relationship/marital status.

2.    An ‘automatically unfair’ reason.

This type of reason will always be unfair according to the law. This includes dismissal on the basis that the employee:

·      is pregnant / on maternity leave

·      has asked for their legal rights

·      took action about a health/safety issue

·      has reported a wrongdoing at work

·      refused to work on a Sunday

·      is a trade union member and took part in related activities

You can, however, dismiss an employee if they are not capable of doing their job, they have behaved badly, their role has become redundant, or a legal reason such as losing the right to work.

Without these reasons, it is likely that you are at risk of a tribunal claim.

If you have a fair reason for dismissal, which does not fall under the ‘discrimination’ or ‘automatically unfair’ criteria, it is accordingly crucial to follow the correct procedure. This includes:

1. It is firstly important to ensure that your valid reason for dismissal is implemented consistently across all employees. It should not be the case that other employees are doing the same thing which led to dismissal of another employee. This is also true for different types of workers, such as fixed-term, part time, or full-time.

2. Investigate the situation fully before dismissing the employee. If a complaint was made, investigate the extent to which it was their fault as it may be unlikely to reoccur.

3. You must give the employee the notice stated in their contract, or the statutory minimum notice period. That being said, if the individual is being let go due to violent behaviour, you may be able to dismiss them immediately.

4. It is useful to give the dismissal in writing, explaining the reasons for your decision. If this has been requested from the employee, it is important to supply the statement within 14 days of their request.

If the employee is on maternity leave, you must under all circumstances give this written statement at the time of dismissal.

It is ideal to seek legal advice before dismissing any employee in order to protect your business from any unfair dismissal claims, as well as to avoid long term damage to your business in failing to tackle an unsuitable employee.

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